Delany v Burgess

[2007] NSWCA 360

Appeal Outcome: Special leave refused with costs by the High Court - 16 May 2008

New South Wales

Court of Appeal

CITATION:	DELANY v BURGESS [2007] NSWCA 360
HEARING DATE(S):	18 September 2007
JUDGMENT DATE:	13 December 2007
JUDGMENT OF:	Mason P at 1; Beazley JA at 105; Hammerschlag J at 111
DECISION:	Appeal dismissed with costs
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – De-facto relationships – relationship – whether de facto relationship existed – whether relationship was of an essentially business nature - FAMILY LAW AND CHILD WELFARE – De-facto relationships – adjustment of property interest – particular cases – where relationship one of give-and-take – where some periods of temporary separation – where property purchased before relationship began – Property Relationships Act 1984, s 18, s 20
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Bilous v Mudaliar [2006] NSWCA 38; (2006) 65 NSWLR 615 Delany v Burgess [2006] NSWSC 1420 Evans v Marmont (1997) 42 NSWLR 70 Howland v Ellis [2001] NSWCA 456; (2001) 28 Fam LR 656 Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550 Manns v Kennedy [2007] NSWCA 217 Sullman v Sullman [2002] NSWSC 169; (2002) DFC 95-248 Thomson v Badger (1989) 13 Fam LR 559
PARTIES:	Leanne DELANY Stephen John BURGESS
FILE NUMBER(S):	CA 40830/06
COUNSEL:	R Colquhoun - Appellant P Campton - Respondent
SOLICITORS:	Fitzpatrick Solicitors Pty Ltd - Appellant Browns the Family Lawyers - Respondent
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 5716/04
LOWER COURT JUDICIAL OFFICER:	McLaughlin AsJ
LOWER COURT DATE OF DECISION:	19 December 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	[2006] NSWSC 1420

CA 40830/2006
SC 5716/2004

MASON P
BEAZLEY JA
HAMMERSCHLAG J

13 December 2007

Leanne DELANY v Stephen John BURGESS

JUDGMENT

1 MASON P: The appellant claims a property adjustment pursuant to s20 of the Property (Relationships) Act 1984 (the Act). The proceedings were dismissed by McLaughlin AsJ on several grounds including that there was no de facto relationship between the parties (Delany v Burgess [2006] NSWSC 1420). His Honour characterised the relationship as being of an “essentially business nature”.

2 The parties met in about September 1995 and commenced a sexual relationship later that year. After interrupted periods of cohabitation they broke up finally in early 2004. These proceedings were commenced in October 2004.

3 The appellant was born in 1955. She had separated from her husband in 1994 at a time when their two sons were in their early twenties.

4 The respondent was born in 1959. He had separated from his wife in 1993. They had two daughters born in 1987 and 1990. The property settlement associated with their divorce included the transfer to the respondent of a jointly owned property at Picnic Point (hereafter “the property”). This had been the respondent’s home since 1985 and continues to be his home.

5 There were three periods during which the appellant resided at the property, although the parties…