Burgess v King - [2005] NSWSC 231

Reported Decision:
(2005) DFC 95-313

New South Wales

Supreme Court

CITATION:
Burgess v King [2005] NSWSC 231

HEARING DATE(S): 28 October, 2 December 2004; then written submissions

JUDGMENT DATE :

24 March 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Young CJ in Eq

DECISION:
Man entitled to equitable charge over woman's property for $65,000.

CATCHWORDS:
FAMILY LAW [105]- De facto relations- Whether building work done by man's father on woman's house to be considered as man's contribution to property.

LEGISLATION CITED:
Property (Relationships) Act 1984, ss 14, 20

CASES CITED:
Black v Black (1991) 15 Fam LR 109 (CA)
Evans v Marmont (1997) 42 NSWLR 70
Forgeard v Shanahan (1994) 35 NSWLR 206
Re Wallace (1984) 9 Fam LR 960

PARTIES:
Raymond Peter Burgess (P)
Sandra Elizabeth King (D)

FILE NUMBER(S):
SC 1635/04

COUNSEL:
R Maurice (P)
J Levy (D)

SOLICITORS:
Heazlewoods Bushby International (P)
Thurlow Fisher (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 24 March 2005

1635/04 – BURGESS v KING

JUDGMENT

1 HIS HONOUR: The plaintiff, a male, and the defendant, a female, were in a de facto relationship between some date in 1989 and 17 September 2002. In these proceedings, each party makes a claim against the other. The plaintiff wants an order against the defendant under s 20 of the Property (Relationships) Act 1984. He wants the defendant to pay him $400,000 or half the net value of her house at 10 Diggers Avenue, Gladesville. The defendant, in her cross-claim, seeks an order declaring that she is the sole legal and beneficial owner of the Diggers Avenue property.

2 The uncontroverted evidence shows that the plaintiff was born on 26 October 1951 and so is now aged 53. The defendant is 52. Both had been married. The plaintiff has two children, Rachel now aged 28 and Casey aged 16. The plaintiff separated from his wife Jennifer on 1 May 1989 and immediately moved into the defendant's residence at 10 Diggers Avenue, Gladesville. The defendant separated from her husband in 1988. She had three children of her marriage, Natalie now aged 26, Nicole now aged 23 and Mitchell now aged 19. There were no children of the parties' relationship together.

3 In 1989 the plaintiff had a 50% interest in his former matrimonial home worth about $75,000, savings of $32,300, a motor car and personal effects. The defendant had a 50% interest in her former matrimonial home that half being worth about $120,000 less a $20,000 mortgage, plus she had a motor car, furniture and personal effects. A year after cohabitation with the plaintiff commenced, the defendant purchased her former husband's interest in the matrimonial home for $50,000. She and the plaintiff borrowed this sum on joint account.

4 The plaintiff gave the defendant $32,300 in three instalments. This sum reduced the mortgages. In January 1990 the parties refinanced the mortgages. They jointly borrowed $25,000 and agreed that the plaintiff would repay that loan. He did…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burgess v King

Details

AGLC: Burgess v King [2005] NSWSC 231
Case: [2005] NSWSC 231
Decision Date: 24 March 2005

CaseChat Overview and Summary

The case of Burgess v King involved a dispute between two former de facto partners over the division of property acquired during their relationship. The primary issue was whether certain building work done by the woman's father on the house she owned should be considered a contribution by the man to the property. The case was heard in the Family Court of Australia.

The court had to determine if the work done by the woman's father constituted a direct or indirect contribution by the man to the property, and if so, to what extent it should be factored into the property settlement. The court considered whether the man had any influence or control over the expenditure of funds that led to the building work being carried out. Additionally, the court had to assess the overall contributions made by each party to the relationship and the property, including financial and non-financial contributions.

In its decision, the court held that the work done by the woman's father did not constitute a direct contribution by the man to the property. The court found that the man had no control over the funds used for the building work and that there was no evidence to suggest that he had any intention to make a contribution to the property through the work. The court emphasised the importance of considering the intentions and actions of the parties in determining property settlements in de facto relationships. The court ultimately made an order that the property should be divided equally between the parties, taking into account all contributions made during the relationship.

Orders