Dunstan v Rickwood

[2006] NSWDC 170

Reported Decision: 6 DCLR(NSW) 6

District Court

CITATION:	Dunstan v Rickwood [2006] NSWDC 170
HEARING DATE(S):	09/10/06 - 11/10/06
JUDGMENT DATE:	9 October 2006
JUDGMENT OF:	Goldring DCJ
DECISION:	Court has jurisdiction
CATCHWORDS:	Jurisdiction - Residence
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Kemp v Webber (2003) ACT SC 7 Havsat v Director General Social Security (1985) 60 ALR 674 Gregory v Deputy Federal Commissioner of Taxation Western Australia (1937) 57 CLR 774 Commissioner of Taxation v Miller (1946) 73 CLR 93 Lavine v The Inland Revenue Commissioners [1928] Appeal Cases 217 Fox v Stirk [1973] 3 All England Reports 7 The Federal Commissioner of Taxation v Applegate 79 Australian Tax Cases 4307
PARTIES:	Ross Dunstan (Plaintiff) Julie Rickwood (Defendant)
FILE NUMBER(S):	942 of 2005
COUNSEL:	Mr G Brsztowski SC (Plaintiff) Mr R Maurice (Defendant)
SOLICITORS:	Crowley Clifford Simpson (Plaintiff) Lessli Strong & Associates (Defendant)

JUDGMENT

1 This is a claim by the plaintiff, Mr Dunstan, against the defendant, Ms Rickwood, under the Property (Relationships) Act 1984.

2 The relationship commenced in 1993 and finished in 2002. For most of the period of that relationship the parties lived in a property in Duffy Street, Ainslie, in the ACT. They also separately acquired and disposed of other properties during that period.

3 Before the relationship ended the plaintiff bought a property at 161 Annetts Parade, Mossy Point, New South Wales. He says that when the relationship ended he went to live there and he was living there at the time that these proceedings were commenced in April 2003. He says that since that time, although he retains the property at Mossy Point and goes there when he can, he now lives with his new partner in the ACT.

4 The defendant takes issue with the jurisdiction of the court. In order to have jurisdiction at the time of the commencement of the proceedings the parties to the application were, or either of them was, resident in New South Wales. That is s 15(1)(b) of the Act. The defendant says the plaintiff was not resident in New South Wales at that time. It does not seem to be in dispute that at the time the plaintiff was employed as a computer programmer and he worked on a casual or part-time basis for the Department of Family and Community Services on a project and for the Australian and New Zealand Food Authority, also on a casual basis, although at the latter authority at the time he was working he says only about ten hours a month. He says that he would come to Canberra to work for particularly the Department of Family and Community Services, for two to three days a week. His normal practice was to leave Mossy Point on a Monday morning, come to the ACT and work there on Mondays, Tuesdays and Wednesdays and return to Mossy Point on Wednesday evening.

5 He says that in about November 2003 he bought a unit at Bonython in the ACT and he bought that unit for the purpose of having a place to stay when he came to Canberra. He stayed for the rest of the time at Mossy Point. It is clear from the unchallenged material that has been filed that he did have a house there. He was certainly engaged in sporting and other activities at Mossy Point and that seemed to be his permanent address for the purposes of obtaining a driving licence, registering a motor vehicle, for the service of bills for his mobile telephone and for his bank and credit union accounts. He says that he prefers to treat that as his permanent home and at that time he was going to Canberra for work only.

6 He was cross-examined about whether or not when he disposed of the unit at Bonython he disclosed this to the Taxation Office for the purpose of assessment of Capital Gains Tax. He says that he advised his accountant that he had disposed of the property. He did not make any profit on the sale, although that had been his original intention, but he agrees that the property was never leased and that he used it regularly.

7 The defendant says on this basis I should treat the unit at Bonython as his permanent home then, given that he had that property and that he used it regularly and that he was working in the ACT.

8 What does the law say the expression “resident” means? I think I should start with the test laid down by Higgins CJ of the Supreme Court of the Australian Capital Territory in Kemp v Webber (2003) ACT SC 7 where his Honour talked about the residence as it was used in the legislation which corresponds to the Property (Relationships) Act in the ACT. Indeed, Mr Dunstan, when he was cross-examined, indicated that he was aware of that legislation but he considered that an application under the New South Wales legislation would be more advantageous to him than would an application under the ACT legislation.

9 In Kemp v Webber his Honour considered a number of cases and it followed what had been said by Wilcox J in a case called Havsat v Director General of Social Security (1985) 60 ALR 674, where at 680 his Honour said that residence includes two elements, physical presence in a particular place and the intention to treat that place as home, at least for the time being, not necessarily forever. That case has been applied by the Full Court of the Federal Court and, in my view, it is consistent with the earlier English and Australian authority.

10 Of the authorities to which I have been referred perhaps the one that is most directly in point was the case of Gregory v Deputy Federal Commissioner of Taxation Western Australia (1937) 57 CLR 774, which was a case decided by Sir Owen Dixon sitting alone. That concerned a man who was a pearl fisher at Broome and also in the Northern Territory. The question was whether he had been a resident of the Northern Territory and therefore subject to a particular provision of the Income Tax legislation as it then stood. Dixon J found that for the purposes of that legislation he was a resident of the Northern Territory, notwithstanding he retained his residence in Western Australia. He said at p 778:

“In the present case I would deny that the taxpayer had retained his residence in Broome in Western Australia. He had done nothing that would be enough to divest himself of the character of a resident of Broome which speaking figuratively clung to him from long association and usage and association and usage which he had done nothing to dissolve or destroy. But I think he did most definitely acquire the concurrent character of a resident of Darwin”.

11 That decision is consistent with the other English and Australian authority going back in particular to the decision of the High Court in Commissioner of Taxation v Miller (1946) 73 CLR 93 and the English cases, in particular the line of cases commencing with Lavine v The Inland Revenue Commissioners [1928] AC 217 and culminating in the very helpful decision of Lord Denning in the case of Fox v Stirk [1973] 3 All ER 7. Those cases and the other material to which I have been referred including the case of Federal Commissioner of Taxation v Applegate 79 Australian Tax Cases 4307, show that a person can be a resident in two places at the same time.

12 It is quite clear from the unchallenged affidavit evidence of Mr Dunstan that he regarded Mossy Point at the time as his home. The major part of his belongings were there. At the time the relationship ended he had no other residence. He did acquire a residence in the ACT for the purpose of having somewhere to stay when he was working there, but that did not deprive him of the character of being a resident of New South Wales.

13 So I therefore decide that point in favour of the plaintiff.

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