Messias v de Barros [2013] NSWDC 125

District Court New South Wales

Medium Neutral Citation: Messias v de Barros [2013] NSWDC 125 Hearing dates: 15, 16, 17, 20, 21, 22, 23, 24 May 2013 Decision date: 27 May 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: 1. Order the defendant pay the plaintiff the sum of $90,000. 2. Reserve the question of costs to a date to be advised. Catchwords: DE FACTO RELATIONSHIP - property adjustment - financial contributions by defendant - no children - small adjustment Legislation Cited: Property (Relationships) Act 1984, s 4, s 5, s 14, s 18, s 20, s 21 Cases Cited: Bilous v Mudaliar [2006] NSWCA 38 Burgess v Moss [2010] NSWCA 139 Ducker v Smith [2011] NSWCA 212 Evans v Marmont (1997) 42 NSWLR 70 Paino v Paino [2008] NSWCA 276 Prior v Brown [2011] NSWSC 1006 Separovich v Ferrao [2011] NSWCA 180 Sharpless v McKibbin [2007] NSWSC 1498 Wendt v Wood [2011] NSWSC 781 Category: Principal judgment Parties: Nailse Messias (plaintiff) Wilson de Barros (defendant) Representation: Mr J F Heazlewood (plaintiff) Ms L Snelling (defendant) Penhall & Co (plaintiff) GP Legal (defendant) File Number(s): 2010/272845 Publication restriction: No

ex tempore Judgment

Background 1In 1999, Wilson de Barros owned and operated an information technology business though a company called BITS International Pty Limited ("BITS"). Although based in New South Wales, Mr de Barros often travelled internationally for work. He also regularly visited family in South America. He owned an apartment in Consett Avenue, Bondi and also owned a one-third interest in an apartment at Ramsgate Avenue, Bondi. 2Nailse Messias was visiting Australia from Brazil as a tourist in 1999. She met Mr de Barros. She was 37 and Mr de Barros was 38. At some date in 2000 Ms Messias and Mr de Barros commenced a de facto relationship. 3At that stage Ms Messias had overstayed her visa and was thus illegally in the country. She had no assets of any significance. She had previously stayed with her sister in an apartment and she did casual cleaning work from which, when she worked, she received approximately $270 per week cash. 4Mr de Barros lived in a leased two-bedroom apartment in Bondi. After spending an increasing amount of time staying with Mr de Barros at his apartment, Ms Messias moved into the apartment with Mr de Barros in 2000. 5In August 2000, the parties arranged for Mr de Barros' name to be added to Ms Messias' St George Bank account. At that time the account had a negligible credit balance and Ms Messias retained the only ATM card capable of accessing the account. One of the purposes of the joint account appears to have been to assist Ms Messias to regularise her residency in Australia. 6Also during 2000 Mr de Barros was in the process of purchasing a property in a place called Florianopolis in Brazil. The purchase was completed in February 2001. There was some evidence that the contract may have been entered as much as a year earlier, with completion delayed because the property was a deceased estate, but this evidence was less than satisfactory. I accept that Mr de Barros made some payments in respect of the purchase price in 2000. 7In 2001, Ms Messias' immigration problems intensified, resulting in her having to return alone to Brazil urgently in July 2001. She remained there until mid-2002, when she returned to Australia on a ticket purchased by Mr de Barros. 8Since that time, Ms Messias has lawfully resided in this country. In about March 2003, Ms Messias secured more regular cleaning employment. Her wage was deposited into her account from March 2003 until June 2007, apart from two periods together totalling a little over a year. Her income when working was generally between $400 and $600 per fortnight. 9It was common ground that in the period August 2000 until December 2007, Mr de Barros and Ms Messias lived together in a de facto relationship in an apartment leased by Mr de Barros. Ms Messias gave evidence that the de facto relationship started a little earlier and continued later than those dates and I will return to this matter. 10For this period from August 2000 until December 2007, Mr de Barros was travelling overseas for about 27 per cent of the time. In addition, Ms Messias was in Brazil for about a year in 2001 and 2002, as already indicated, and for most of that time was apart from Mr de Barros. 11In the result, the parties were physically together for about four and-a-half years of that period of almost seven and-a-half years, although there were regular telephone and email communications between them during those periods apart. 12The relationship deteriorated in late 2007. From early November 2007, Mr de Barros took a number of business trips to New Zealand, returning shortly before Christmas. In late January 2008, he departed for Brazil and remained there until mid-May 2008. 13When Mr de Barros was away Ms Messias lived in the apartment alone. Communication between Ms Messias and Mr de Barros after November 2007 was infrequent and less affectionate than previously. When Mr de Barros returned from Brazil in May 2008, he stayed at the apartment from May to November 2008. The parties disagreed as to whether the de facto relationship continued in that period. 14In any event, Mr de Barros again departed to Brazil at the end of November 2008 and did not return until early April 2009. Ms Messias contends the de facto relationship ended with Mr de Barros' departure. She remained in the apartment until late March 2009, allowing boarders to stay in the spare room to help defray the cost of the rent. After she moved out, Mr de Barros returned in April 2009 and continued to occupy the leased apartment.