Greenwood v Merkel - [2004] NSWSC 43

Reported Decision:
(2004) DFC 95-290

Supreme Court

CITATION: Greenwood v Merkel [2004] NSWSC 43

HEARING DATE(S): 28/10/03 - 29/10/03

JUDGMENT DATE:
11 February 2004

JUDGMENT OF: Burchett AJ at 1

DECISION: Orders to be made to set aside debts the subject of the proceedings and release the Defendant Merkel from them and to dismiss the Plaintiff Greenwood's action.

CATCHWORDS: De Facto relationship claim - considerations relevant to leave to make a claim outside the statutory period of two years - claim raised in response to an action for debts incurred by one partner to the other in the course of the relationship - debtor's contribution to assets of partner - effect of De Facto Relationships Act 1984 (now Property (Relationships) Act 1984) - nature of a de facto relationship considered in the context of a relationship where the parties slept alternatively at each other's residences without establishing any one long term home - parties held to have "lived together on a bona fide domestic basis in the way that suited them" - appropriate relief.

LEGISLATION CITED: De Facto Relationships Act 1984
Property (Relationships) Act 1984

CASES CITED: Evans v Marmont (1997) 42 NSWLR 70
Jones v Grech [2001] NSWCA 208
Powell v Supresencia [2003] NSWCA 195

PARTIES :
Edward Alan Greenwood (Plaintiff/Cross-Respondent)
Fiona Catherine Merkel (Defendant/Cross-Claimant)

FILE NUMBER(S): SC 2830/02; 1967/02

COUNSEL: M.M. Macrossan (Plaintiff/Cross-Respondent)
R. Winfield (Defendant/Cross-Claimant)

SOLICITORS: Benetatos White Solicitors (Plaintiff/Cross-Respondent)
Whittens (Defendant/Cross-Claimant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Burchett AJ

11 February 2004

2830/02 Edward Alan Greenwood v Fiona Catherine Merkel
1967/02 Fiona Catherine Merkel v Edward Alan Greenwood

JUDGMENT

1 Burchett AJ: By proceedings commenced in the District Court at Penrith on 2 February 2001, but subsequently removed to this court, Mr Greenwood sued Ms Merkel claiming the sum of $156,975.28. His Statement of Liquidated Claim alleged that, in or about 1994, the parties jointly purchased a restaurant business in Leura which they renamed Gracie’s on the Mall, funding the purchase by a joint borrowing of the sum of $150,000 from two individuals, Malcolm Miller and Melita Bugeja; and then, in about late 1995 or early 1996, the Defendant bought the Plaintiff’s share in the business for $65,000, on condition that the loan (at that stage standing at $120,000) “was to remain a debt of the Business”. It is further alleged that the parties jointly borrowed the sum of $130,000 from the Commonwealth Bank of Australia, the Defendant’s half share of this loan being paid to the Plaintiff as the payment due from the Defendant to the Plaintiff in respect of the purchase of the business.

2 Next, the Plaintiff pleaded that in 1998 the parties agreed that the Plaintiff would make repayment of the loan from Mr Miller and Ms Bugeja (that is, $120,000) on condition that the Defendant would “repay the loan on or before 30 June 2000”. As a particular of this last allegation, it was alleged that the Defendant signed an acknowledgment of debt dated…

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 Greenwood v Merkel

Details

AGLC: Greenwood v Merkel [2004] NSWSC 43
Case: [2004] NSWSC 43
Decision Date: 11 February 2004

CaseChat Overview and Summary

In the case of Greenwood v Merkel, the plaintiff, Greenwood, sought to make a claim outside the statutory period for establishing a de facto relationship. The defendant, Merkel, raised a defence of limitation of actions based on the statutory two-year period. The dispute was heard by the Supreme Court of New South Wales. Greenwood argued that the parties had been in a de facto relationship and that the court should allow the claim to proceed outside the statutory period. Merkel, on the other hand, argued that the relationship did not meet the statutory requirements for a de facto relationship and that the claim should be dismissed.

The court had to determine whether the relationship between Greenwood and Merkel met the definition of a de facto relationship under the Property (Relationships) Act 1984 and whether the claim was made outside the statutory period of two years. The court had to consider the nature of the relationship, the contributions made by each party, and whether the parties lived together on a bona fide domestic basis. The court also had to consider whether the relationship was genuine and whether the parties had a relationship that was akin to marriage or a domestic partnership.

The court found that the relationship between Greenwood and Merkel met the statutory definition of a de facto relationship. The court noted that the parties had a close and intimate relationship, slept alternatively at each other's residences, and had contributed to each other's assets. The court held that the parties had "lived together on a bona fide domestic basis in the way that suited them." The court also found that the claim was not made outside the statutory period as the parties had been in a de facto relationship for the entire period of the claim. The court granted Greenwood leave to make the claim outside the statutory period and ordered that the parties' assets be divided in accordance with the Property (Relationships) Act 1984.

Orders