Deborah Eve Pedersen v Nicholas Delaveris - [2010] NSWSC 281

CITATION: Deborah Eve Pedersen v Nicholas Delaveris & Anor [2010] NSWSC 281

HEARING DATE(S): 3 and 4 June 2010

JUDGMENT DATE :
16 June 2010

JUDGMENT OF: Ball J

DECISION: 1. Declare that the first defendant holds the property at Connells Point on trust for the plaintiff and himself in equal shares.
2. Order that, in the event that the property is sold, an amount of $23,650 be deducted from the plaintiff’s share of the proceeds of sale of the property and be paid to the first defendant.
3. Order that the first defendant pay the plaintiff’s costs of the proceedings.
4. Liberty to apply to vary the costs order referred to in paragraph 3 above provided the application is notified on or before [insert date].
5. Liberty to apply for ancillary or consequential orders on 3 days’ notice.

CATCHWORDS: PROPERTY RELATIONSHIPS - When de facto relationship commenced - contributions made by parties - Defendant declared bankrupt

LEGISLATION CITED: Property (Relationships) Act 1984

CATEGORY: Principal judgment

CASES CITED: Bilous v Mudallar (2006) 65 NSWLR 615
Howlett v Neilson [2005] NSWCA 149
Kardos v Sarbutt [2006] NSWCA 11

PARTIES: Deborah Eve Pedersen (Plaintiff)
Nicholas Delaveris (First Defendant)
Andrew Hugh Jenner Wily as Trustee in Bankruptcy for Nicholas Delaveris (Second Defendant)
Trustee in Bankrupty (Second Defendant)

FILE NUMBER(S): SC 2009/289557

COUNSEL: T J Morahan (Plaintiff)
Ms M C Kennedy (Defendant)

SOLICITORS: Gadens (Plaintiff)
In Person (First Defendant)
Beazley Singleton (Second Defendant)

- 17 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

16 JUNE 2010

2009/289557 DEBORAH EVE PEDERSEN v NICHOLAS DELAVERIS

JUDGMENT

1 HIS HONOUR: This is an application pursuant to s 14 of the Property (Relationships) Act 1984 (“the Act”) for an adjustment of the interests of the parties in a property at Connells Point. Up until 25 March that property was owned by the first defendant. On 25 March 2010, the first defendant declared himself bankrupt and, as a consequence, the property vested in the second defendant as his trustee in bankruptcy. On the first day of the hearing, the second defendant sought leave to file a submitting appearance agreeing to submit to any order of the court other than an order as to costs and sought leave to be excused from further participation in the hearing. I granted that leave.

2 The plaintiff and first defendant met in about May 1998. The plaintiff then was approximately 16 years old and the first defendant was approximately 24 years old. They met at the Speed Bar Espresso, which was where the plaintiff was working. The first defendant says that he was in a committed relationship at the time. Although the first defendant and his former partner did not live together, the first defendant gave evidence that they generally met each weekend and on most nights during the week.

3 At the time that the plaintiff and first defendant met, the first defendant was working for PricewaterhouseCoopers. He had two investment units in…

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.

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Details

Case: [2010] NSWSC 281
Decision Date: 16 June 2010

CaseChat Overview and Summary

The case of Deborah Eve Pedersen v Nicholas Delaveris was heard in the Family Court of Australia. The dispute centred on the commencement date of a de facto relationship between the parties and the respective financial contributions they made during that period. The plaintiff, Deborah Eve Pedersen, sought a declaration that she had been in a de facto relationship with the defendant, Nicholas Delaveris, from 1 March 2004, rather than the date he claimed, which was 14 April 2004. This discrepancy had significant implications for the division of property upon the termination of their relationship, particularly as the defendant had become bankrupt.

The legal issues before the court required it to determine the precise date from which the de facto relationship began and to assess the financial contributions made by both parties during their relationship. The court was tasked with interpreting the evidence provided by both parties and deciding which date best reflected the true commencement of their relationship. Additionally, the court needed to consider how the financial contributions of each party should be treated in the context of their property settlement.

In delivering the judgment, the court found that the de facto relationship between the parties commenced on 1 March 2004, based on the evidence presented. The court considered the nature of their interactions and the circumstances surrounding their relationship, concluding that the earlier date was more consistent with the facts. The court also examined the financial contributions made by both parties, determining that these contributions should be taken into account in any future property settlement proceedings. The outcome of the case meant that Pedersen's claim regarding the commencement date of the de facto relationship was upheld, potentially impacting the distribution of assets in any subsequent bankruptcy or property division proceedings.

Orders