Brzezowski v Seewoo

[2005] NSWSC 505

CITATION:	Brzezowski v Seewoo [2005] NSWSC 505
HEARING DATE(S):	23/05/2005
JUDGMENT DATE :	23 May 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1

CATCHWORDS:	Family law application under Property (Relationships) Act 1984. No matter of principle.
PARTIES:	Rman Brzezowski v Marie Anne Seewoo
FILE NUMBER(S):	SC 3309/2004
COUNSEL:	Mr Thistleton for defendant
SOLICITORS:	Watson Stafford for defendant

LOWER COURT JURISDICTION:

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

MONDAY 23 MAY 2005

3309/04 - ROMAN BRZEZOWSKI v MARIE ANNE SEEWOO

JUDGMENT

1 MASTER: This is a hearing of a statement of claim and cross-claim between the parties in which the parties respectively seek an adjustment of property interests under section 20 of the Family Provision Act 1984.

2 The plaintiff has been given adequate notice of the hearing and has not appeared. This appears to be consistent with what the affidavits disclose as his attitude towards the proceedings over a period of time. I am quite satisfied on the information before me that he has had adequate notice of the hearing and orders that are to be sought by the defendant in the matter, particularly the minute of order to which I will later refer.

SHORT CHRONOLOGY

3 The defendant was born on 20 October 1949 and the plaintiff on 7 October 1958. The defendant herself was injured in a work accident in 1987, some years prior to the parties commencing to live together. The parties first commenced to live together on 15 December 1990 in accommodation which was rented by the defendant.

4 In December 1990 the defendant received a total of $112,000 compensation for a 1987 injury. As a result, in May 1991 the defendant purchased a property at 63 Tracey Street, Revesby for a cost of $175,000. The defendant contributed $85,000 from her compensation and the balance of $90,000 was borrowed. Both the plaintiff and the defendant were liable under that mortgage.

5 The defendant managed the parties’ finances, which were pooled, and the plaintiff thereafter took about $70 per week for his personal expenses. In 1995 the defendant received a sum of $10,962 by way of superannuation and used it to make renovations to the home. In 1997 the plaintiff took out a personal loan to buy a car. In 1998 the mortgage had been reduced by the combined earnings of the parties down to $52,250.

6 According to the defendant’s evidence, which I accept, the relationship finished in March 1998.

7 On 20 August 1998 the plaintiff was injured at work. This prevented him from further working, although the defendant, herself, continued to work. There was payment of child support by the plaintiff for a while, but that ceased in 1999.

8 Commencing at this time the defendant’s daughter started supporting her mother, giving her upwards of $10,000 to continue with the expenses of maintaining the house. In February 2001 the plaintiff received a compensation payout and his superannuation entitlements. Those funds were used by him to discharge the mortgage on Revesby and the plaintiff also bought a car which was registered in the defendant’s name.

9 On 25 December 2005 the defendant’s son had left the home as a result of the behaviour of the plaintiff, who was affected by alcohol. Unfortunately, the evidence discloses a substantial alcohol problem in the plaintiff, and it was extremely difficult for the defendant to maintain a relationship. However, after the end of the relationship she continued to look after the plaintiff.

10 It was, of course, the defendant, who spent a substantial amount of time caring for the plaintiff after his injury. On 9 April 2002 the plaintiff left the Revesby house and the defendant obtained an apprehended violence order against him. This was the result of continual domestic violence which the plaintiff perpetrated on the defendant.

11 In July 2003 the plaintiff received a verdict for his injury of $1.3 million, together with costs. Some $255,000 was deducted from that for costs and Health Insurance Commission repayments. He would have recovered a sum of costs but obviously received a very substantial amount.

12 These proceedings were transferred to the Supreme Court in 2004 and, in due course, various orders for substituted service were made on the plaintiff, who kept avoiding service.

13 On the evidence before me, the application by the plaintiff, who commenced proceedings and the defendant, who filed a cross-claim, also seeking relief, were out of time. Under section 18 the Court may extend the time where the Court is satisfied that greater hardship would be caused to the applicant if the leave were not granted than would be caused to the respondent if that leave were granted.

14 Having great regard to the matters which I intend to deal with, it is clear that the defendant will suffer the greater hardship if she is not permitted to proceed with her hearing.

15 It is, of course, necessary for there to be some explanation as to this delay, and the explanation is fairly obvious in this case. What happened was that after the relationship had ceased the parties lived together before obtaining appropriate advice, because the defendant was looking after the plaintiff after he had suffered his work injury. It was only when eventually things crystallised with the plaintiff leaving home in April 2002, that the parties would have turned their minds to proceedings to resolve their affairs.

16 The actual proceedings were commenced on 14 February 2003, well within two years after the date when the plaintiff finally left the home. In these circumstances I am satisfied that there is an adequate explanation for the delay and the failure to commence the proceedings within time.

17 It is necessary to look at the assets of the parties at the commencement of cohabitation. At that time the defendant was living in a three bedroom Housing Commission home which she had furnished modestly. She owned a vehicle which she recently purchased for $25,000. The plaintiff had some household furniture of only nominal value, a second hand car and apparently had no savings. The evidence does not address the property which the parties had at the conclusion of the relationship in detail, but plainly, the defendant owned the home at Revesby, which was free of any mortgage. There was also a motor vehicle.

18 Given the absence of the plaintiff from the proceedings one would not know what he had at the conclusion of the relationship, but certainly it was an entitlement to a claim for his work accident which, at a later stage, was crystallised at least $1.5 million. At the date of the hearing before me, the Revesby home is valued at $500,000. The evidence before me establishes that fact.

19 It is necessary to look at the contributions to the property of the parties. The plaintiff was a contributor as a result of his wages which he earned, between 1990 and 1998. He contributed also some funds when he received his superannuation and also his compensation. There were no children of the relationship between the parties, but the plaintiff had to pay child support, which he did for a while, and in due course ceased.

20 In terms of financial contributions it is plain the defendant contributed more than half of the equity in the Revesby property. The plaintiff himself made some contributions to mortgage for a time, until his accident, and also paid out the $52,000. Overall, of course, the most substantial contributions are those by the defendant to the property, and the property is in her name.

21 I have mentioned the homemaker responsibilities of the defendant in looking after the plaintiff after his accident. The extent of those contributions was quantified in evidence by Daniel Robertson, and it is plain those contributions, if delivered on a commercial basis, would have cost the plaintiff the sum of $348.25. I am aware one normally does not measure homemaking contributions in this way, but in this case, because of the nature of the contributions, it is necessary to have some estimate of what is an appropriate contribution by the defendant.

22 It also has to be appreciated that these continued after the conclusion of the de facto relationship and can be taken into account. The particular circumstances of this case indicate that it is appropriate to take them into account. It also should be noted that the actual care extended to assisting the plaintiff by taking him to various appointments in connection with his case, various legal appointments and medical appointments.

23 It is also important in considering these to note that the domestic violence that existed was something which, in my view, made the contributions more difficult to be done by the defendant. (See various authorities such as Hughes v Egger [2005] NSWSC 18; and Jackson v Jackson [2000] NSWSC 303).

24 In my view, taking into account the various financial contributions which have been made by the defendant, and also her extensive homemaker contributions, and balancing these against the financial contributions that the plaintiff himself has made by paying off the mortgage on the house, and contributing to its repayment for a period of time, the appropriate order is that there be paid by way of adjustment of the parties’ property interests the sum of $300,000 by the plaintiff to the defendant.

25 Accordingly, the orders that I make are those in the minutes of order which I will sign and date today and place with the papers. The exhibits, apart from the affidavit, part of which was marked as an exhibit, can be returned.

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