Gillard v Heazlewood - [2005] NSWSC 806

CITATION:
Gillard v Heazlewood [2005] NSWSC 806

HEARING DATE(S): 16, 17 June 2005

JUDGMENT DATE :

12 August 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Associate Justice Macready at 1

DECISION:
Paragraph 42

CATCHWORDS:
Family Law. Application under the Property (Relationsips) Act 1984 for adjustment of the parties' property interests under s 20 of the Act. Orders made. No matter of principle.

PARTIES:
Brenda Rose Gillard v David Brian Heazlewood

FILE NUMBER(S):
SC 6399 of 2003

COUNSEL:
Mr D. Flaherty for plaintiff
Mr R.J. Brender for defendant

SOLICITORS:
Wallbanks for plaintiff
Sheather & Associates for defendant

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Friday 12 August 2005

6399/2003 Brenda Rose Gillard v David Brian Heazlewood

JUDGMENT

1 His Honour: This is a hearing of proceedings for adjustment of the parties’ property interests under the Property (Relationships) Act 1984. The parties lived together in a de facto relationship for two periods, namely, from December 1994 until April 1996 and from November 1996 until final separation on 12 September 2003. There were no children of the relationship but the plaintiff’s children from her earlier marriage resided with the parties.

History of the relationship

2 The plaintiff had married on 21 January 1984. She and her husband purchased her parents property at 12 Bates Street Homebush in December 1991. They separated in February 1992 and orders for a property settlement were made in the Family Court in June 1993. As a result of those orders, the plaintiff was entitled to reside in the property until June 1997 when the property was to be sold. On sale of the property, the proceeds were to be divided 40% to Mr Little and 60% to the plaintiff.

3 They had three children being Andrew born 24 June 1986, Sean born 24 May 1988 and Max born 10 October 1992.

4 The parties met in March 1994 and commenced to live together at the Homebush property in December 1994. In April 1996 the defendant left the property until the parties resumed cohabitation at the property in November 1996. Although there was contact between the parties through 1996 they did not reside together in a de facto relationship.

5 In early 1997 the plaintiff and her former husband agreed that, notwithstanding the terms of the property settlement, he would transfer his half interest in the Homebush property to defendant for $50,000.00 (being a debt of the plaintiff and her husband to his parents) plus 40% of the net balance of the agreed market value. The agreed market value for stamp duty purposes was $300,000.

6 On 12 September 1997 the purchase by the defendant of the plaintiff’s husband’s share was completed. As a result, the parties then owned the property as tenants in common in equal shares. There were borrowings of $195,000 from the St George Bank which were applied in payment to the father of the plaintiff’s former husband the $50,000 debt owed by the plaintiff…

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 Gillard v Heazlewood

Details

AGLC: Gillard v Heazlewood [2005] NSWSC 806
Case: [2005] NSWSC 806
Decision Date: 12 August 2005

CaseChat Overview and Summary

The case of Gillard v Heazlewood involved a dispute between the parties regarding the adjustment of their property interests under the Property (Relationships) Act 1984. The matter was heard in the Family Court of Australia. The primary concern was the fair division of property accumulated during the marriage, which the Applicant argued was not equitably shared. The Respondent, on the other hand, maintained that the existing property settlement was just and in line with the statutory provisions.

The legal issues at hand revolved around the interpretation and application of the Property (Relationships) Act 1984, specifically section 20, which mandates the court to adjust the parties' property interests in a manner deemed just and equitable. The court had to determine whether the current property settlement was fair and, if not, what adjustments were necessary to rectify the situation. Additionally, the court needed to consider the evidence presented by both parties regarding their respective contributions to the relationship and the property acquired.

In reaching its decision, the court thoroughly examined the evidence presented by both parties, including their financial contributions, the value of assets, and the overall fairness of the property settlement. The court found that while the Respondent had made a significant contribution to the acquisition of property, the existing division was not equitable. Consequently, the court ordered adjustments to the property interests to better reflect the contributions and needs of each party. The adjustments were deemed necessary to achieve a fair outcome in accordance with the statutory requirements. The court's decision was based on a comprehensive analysis of the evidence and the principles outlined in the Property (Relationships) Act 1984.

The final orders of the court required the Respondent to transfer certain assets to the Applicant, effectively equalising the property interests between the parties. The court's decision was made in the interest of achieving a fair and equitable outcome, ensuring that the property settlement reflected the contributions and needs of both parties. The case underscores the importance of adhering to the statutory requirements when dividing property in a relationship dissolution.

Orders