New South Wales Supreme Court CITATION : Beltran v Hudspith [2010] NSWSC 264 HEARING DATE(S) : 16 and 17 November 2009 JUDGMENT DATE : 9 April 2010 JUDGMENT OF : McLaughlin AsJ 1. I order that on or before 9 May 2010 the Defendant effect the transfer to the Plaintiff, at the expense of the Plaintiff, of one half of the Defendant's right, title and interest in the Vaucluse property, subject to the mortgage registered thereon, to the intent that the parties will then hold the Vaucluse property as tenants in common in unequal shares, the Plaintiff as to a 90 percent share therein and the Defendant as to a 10 percent share therein. DECISION : 2. I order that the Plaintiff pay one half of the costs of the Defendant of the proceedings. 3. I reserve to the parties liberty to apply in respect to the implementation of order 1 hereof. 4. The exhibits may be returned. CATCHWORDS : FAMILY LAW - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - assets and income of Plaintiff far exceeded those of Defendant - contributions of Defendant (although far less than those of Plaintiff) should not be entirely disregarded. LEGISLATION CITED : Property (Relationships) Act 1984 CATEGORY : Principal judgment CASES CITED : Davey v Lee (1990) 13 FamLR 688 Bilous v Mudalia [2006] NSWCA 38 PARTIES : Maria Del Mar Nunez Beltran (Plaintiff) James Robert Hudspith (Defendant) FILE NUMBER(S) : SC 1514 of 2009 COUNSEL : Mr A. Street SC (Plaintiff) Defendant in person SOLICITORS : Garland Hawthorn Brahe Solicitors (Plaintiff) Defendant in person IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ASSOCIATE JUSTICE McLAUGHLIN Friday, 9 April 2010 1514 of 2009 MARIA DEL MAR NUNEZ BELTRAN –v- JAMES ROBERT HUDSPITH JUDGMENT 1 HIS HONOUR: By statement of claim filed on 16 February 2009 Maria Del Mar Nunez Beltran claimed an order adjusting the interests in property of herself and the Defendant, James Robert Hudspith (such property being real property being situate at Vaucluse, and being referred to as "the Vaucluse property"), pursuant to the Property (Relationships) Act 1984; and, in the alternative, a declaration that the Defendant holds his interest in the Vaucluse property on a resulting or constructive or implied trust for the Plaintiff. 2 At the outset of the hearing the Plaintiff abandoned her claim in respect to an asserted trust, and proceeded only upon her claim under the Property (Relationships) Act. 3 The Defendant (who acted for himself, without legal representation in the proceedings, and who appeared in person at the hearing) filed a defence on 18 March 2009. 4 It was not disputed that the parties were in a de facto relationship from May to September 2005, and from June 2006 to July 2007, being for a total period of about 18 months. It will be appreciated that that period is less than the period of two years referred to in section 17 (1) of the Act. However, since there is child of the parties to the application (being Thomas Gabrielle Hudspith Beltran, born in 2007), the Plaintiff can enliven the jurisdiction, conferred on the Court by section 17(2)(a) of the Property (Relationships) Act, to make an order of the nature claimed by the Plaintiff. 5 The Plaintiff (who was born in Spain in 1969 and is presently aged 40) arrived in Australia in 2003 on a two year employment contract as managing director of Ferrovia Airports. She held a working visa (referred to in the evidence as a "457 visa"). Subsequently, the Plaintiff studied for and was awarded the degree of Master of Business Administration (Executive) by the University of Sydney. The Plaintiff and the Defendant met in March 2004 and commenced a relationship shortly thereafter. In September 2004 they went on a holiday to Bali, which was paid for by the Defendant. At the time when they met the Defendant (who was born in 1976 and is presently aged 34) was employed as a shipwright. 6 Throughout the initial period of the de facto relationship, from May until September 2005, the parties resided in Spain. 7 At the time of the commencement of the de facto relationship the Plaintiff's assets consisted of: Home unit in Madrid, Spain, having an estimated value of $800,000 Furniture, to which a value of $100,000 was ascribed. Shares in publicly listed companies, having a value of $200,000. 8 The Plaintiff also had a superannuation entitlement in an amount which was not quantified in the evidence. Her only liability at that time was a mortgage on the home unit in Madrid, in an amount equivalent to about $300,000. 9 At that time the Defendant's assets consisted of a motorcar, to which he ascribed a value of $6,000; trade tools, having an estimated value of $5,000; and furniture, having an estimated value of $4,0000. 10 Throughout the entire period of their de facto relationship, and especially after she commenced employment as a fund manager with AMP in January 2006, the Plaintiff's income far exceeded that of the Defendant. For example, in the last year of the relationship (2006–2007) the Plaintiff received a salary of $215,000, together with a bonus of $200,000. The Defendant's total income for the entire period of the relationship (about 21 months) was $79,200. 11 While the parties resided in Spain during the first period of their de facto relationship in 2005, the Plaintiff paid all airfares and accommodation for the Defendant, and paid all his expenses. Essentially, that period in Spain was in the nature of a holiday for the Defendant. However, for a short period while he was in Europe, the Defendant was in employment, first, in Spain, and then (for a few weeks) in Italy. 12 The parties returned separately to Australia in December 2005. Later the Plaintiff again visited Spain, and in January 2006 she returned to Australia on what was referred to as "a de facto visa" (that having been, as I understand it, granted on account of her status as the de facto partner of the Defendant). From June 2006 until January 2007, the parties resided in rented accommodation at Paddington. They then removed to rented accommodation at Rushcutters Bay, where they remained until April 2007. In February 2007, their son Thomas was born. 13 The parties purchased the Vaucluse property in early 2007, that purchase settling in April of that year, and the parties thereupon entered into residence in that property. The de facto relationship between the parties terminated in July 2007. 14 The Vaucluse property was purchased for the sum of $1,350,000, plus stamp duty, plus costs. That purchase was funded as follows, Plaintiff's savings $250,000 Plaintiff's bonus from employment $100,000 Plaintiff's additional mortgage upon her residential unit in Madrid $100,000 Mortgage from Commonwealth Bank of Australia, in joint names of Plaintiff and Defendant $1,000,000. 15 In addition, the Defendant was entitled to a first home owner's grant of $7,000, which he contributed towards the purchase price, as well as a cash contribution in an amount asserted by him to have been about $15,000. 16 The Vaucluse property was purchased by the parties as tenants in common in unequal shares, the Plaintiff as to an 80 percent share therein and the Defendant as to a 20 percent share therein. 17 From the time of its purchase the Plaintiff made repayments upon the mortgage loan in respect to the Vaucluse property, those repayments being in amount of $7000 a month. 18 Throughout the relationship the household outgoings and expenses of the parties were essentially paid by the Plaintiff. In about January 2007 the Defendant started making some contributions to their living expenses by way of direct transfer from his bank account. He said that he also made cash payments of about $4000-$5000 towards household and living expenses. 19 At the termination of the relationship in July 2007, the Plaintiff had the following assets. 80 percent interest in the Vaucluse property $1,080,0000 Home unit in Madrid $700,000 20 percent interest in a flat in Spain $100,000 Volkswagen motor vehicle $40,000 Furniture, in an unquantified amount Superannuation, in an unquantified amount 20 The Plaintiff's liabilities at that time were: 80 percent of the mortgage secured over the Vaucluse property, in an estimated amount of $800,000 Mortgage secured over home unit in Spain $400,000 21 At the time of the termination of the relationship, the Defendant had the following assets: 20 percent interest in the Vaucluse property $270,000 Motor vehicle, to which he ascribed a value of $30,000 Furniture, having an unquantified value Trade tools, having an estimated value of $5,000. 22 The Defendant had the following liabilities at that time: 20 percent of the mortgage secured over the Vaucluse property $200,000 Personal loan $25,000 23 The Defendant did not dispute that the direct and indirect financial contributions of the Plaintiff to the relationship far exceeded such contributions made by the Defendant. However, the Defendant asserted that he made significant contributions to the relationship as homemaker and parent, especially after the birth of Thomas. The extent of the respective contributions of each party as homemaker and parent was in issue between them. 24 Further, it was asserted by the Defendant that it was only on account of his participation in the purchase of the property as an Australian resident that the parties were entitled to obtain a mortgage from the Bank, and that the Plaintiff, as a non-resident at the time of that purchase, would not, alone, have been able to have obtained such a mortgage. There was evidence given concerning the circumstances in which the parties eventually agreed to the Defendant having a 20 percent interest in the Vaucluse property. It would appear that the Plaintiff originally desired that the Defendant's interest therein should not exceed 10 percent. 25 There was a considerable amount of evidence presented concerning the alleged drug taking activities of the parties, especially of the Defendant, from the time when the parties met. I consider that evidence to be totally irrelevant to the matters which I must decide in the present proceedings. Similarly, I consider the Defendant's cyclical vomiting syndrome (asserted by the Plaintiff, but denied by the Defendant, to have been triggered by his drug taking) to be irrelevant to the outcome of the present proceedings. 26 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff. I have had the benefit of receiving a written outline of submissions and a chronology from Senior Counsel for the Plaintiff. Those documents will be retained in the Court file. 27 The jurisdiction invoked by the Plaintiff in the present proceedings is founded upon section 20 of the Property (Relationships) Act, subsection (1) whereof provides: On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely: (i) a child of the parties, (ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties. 28 In approaching a claim for adjustment of the interests of parties in property pursuant to section 20(1) of the Property (Relationships) Act the Court must make a holistic judgment and must not attempt to evaluate the respective contributions of the parties as if it were undertaking a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time consuming of litigious exercises). (See Davey v Lee (1990) 13 FamLR 688; see also Bilous v Mudalia [2006] NSWCA 38, at [43], where Ipp JA said that some situations do not lend themselves to either a pure global approach or a pure asset by asset approach in determining what orders should be made.) 29 In considering the claim of the Plaintiff the Court should not be diverted from the clear words of the statute, where, by section 20 (1), the Court is required to have regard to the respective contributions of the parties of the nature referred to in that subsection. It should be emphasised, in this regard, that the Property (Relationships) Act 1984 (New South Wales) looks only to past contributions, whereas the Family Law Act 1975 (Commonwealth) looks also to present and future needs. 30 There was considerable evidence given concerning events and matters which occurred after the termination of the relationship. That evidence is totally irrelevant to a consideration of the respective contributions of the parties of the nature referred to in section 20(1), and will be disregarded. 31 I have already observed that both the income and the assets of the Plaintiff at the commencement of the relationship and at its termination and at all periods throughout the very short relationship (in total, of no more than about 18 months) overwhelmingly exceeded those of the Defendant. However, the effect of the relief sought by the Plaintiff would be to deprive the Defendant entirely of any recognition of his contributions to the relationship. 32 Those contributions were financial (but very small, compared to those of the Plaintiff), and non-financial. The non-financial contributions included the co-operation and assistance of the Defendant in enabling the Plaintiff to obtain what was referred to as a de facto visa, granted to her on account of their relationship; also the fact that the Plaintiff, not being a permanent resident of Australia at the time, could not alone have obtained the mortgage from the Commonwealth Bank, and that she required the participation of the Defendant in that application for the mortgage. 33 Moreover, the Defendant assumed a joint liability with the Plaintiff in respect to that mortgage. It is all very well to assume that the financial circumstances of the Plaintiff were such as to make it most unlikely that any default would have occurred, or that the Defendant would be called upon to meet his mortgage liability. Nevertheless, he assumed a legal liability and a financial risk in that regard. 34 Further, the Defendant made contributions as homemaker and, after his birth, as parent to their son Thomas. Those contributions were significant, and should not be treated as being merely nominal. In addition, although there was a dispute as to their extent, the Defendant did make some contributions of a physical nature towards the maintenance and improvement of the Vaucluse property. 35 I am not persuaded that, in the light of the foregoing contributions of the Defendant, he should (as was submitted by the Plaintiff) be totally deprived of any interest in the Vaucluse property. 36 I do not accept that the contributions of the Defendant to the relationship should be disregarded in their entirety. The foregoing contributions of the Defendant (although far less than those of the Plaintiff) entitle him to some interest in the Vaucluse property. Nevertheless, I consider that those contributions of the Defendant to the relationship should be reflected by an interest less than the 20 percent legal interest which he currently holds in the title to that property. I consider it appropriate that the interests of the parties in the Vaucluse property should be adjusted by an order which will give to the Plaintiff a 90 percent interest therein, and to the Defendant a 10 percent interest therein. 37 During the course of the hearing it was noted that the Plaintiff seeks no order as to costs against the Defendant. The Plaintiff has not succeeded in obtaining the relief which she claims, being an order that the Defendant transfer the totality of his interest in the Vaucluse property to the Plaintiff, subject to the mortgage thereon. But neither has the Defendant succeeded in resisting in its entirety the application by the Plaintiff for adjustment of their respective interests in the Vaucluse property. In consequence, I consider it appropriate that the Plaintiff should pay one half of the costs of the Defendant of the proceedings. 38 I make the following orders: 1. I order that on or before 9 May 2010 the Defendant effect the transfer to the Plaintiff, at the expense of the Plaintiff, of one half of the Defendant's right, title and interest in the Vaucluse property, subject to the mortgage registered thereon, to the intent that the parties will then hold the Vaucluse property as tenants in common in unequal shares, the Plaintiff as to a 90 percent share therein and the Defendant as to a 10 percent share therein. 2. I order that the Plaintiff pay one half of the costs of the Defendant of the proceedings. 3. I reserve to the parties liberty to apply in respect to the implementation of order 1 hereof. 4. The exhibits may be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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