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Haley v Perkins

Haley v Perkins

Case [2010] NSWSC 1091 1 October 2010

De facto relationships

Adjustment of property interests

Unconscionable Conduct

Non-financial contributions

Family Law

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CITATION: Haley v Perkins [2010] NSWSC 1091

HEARING DATE(S): 17 September 2010

JUDGMENT DATE :
1 October 2010

JUDGMENT OF: Hallen AsJ

DECISION: I order that:
(a) Within 14 days of this date, the Plaintiff, by her solicitor:
(i) shall serve a copy of this Judgment, together with a letter drawing attention to these orders upon the Defendant;
(ii) shall advise the Defendant, in writing, that she will provide a transfer, in registrable form, transferring all of her right, title and interest, in the property known as “Bimbimbie” to the Defendant, upon condition that the Defendant, simultaneously, pays to her $50,000;
(b) Within 14 days of the date of the letter advising that the Plaintiff is ready, willing and able, to provide the transfer, the Defendant shall advise the Plaintiff, by her solicitors, in writing, whether he is ready, willing and able, to pay to her, the amount of $50,000;
(c) Within 14 days of the date of the Defendant’s letter, or within such other time as the parties agree in writing, the parties shall cause the transfer in registrable form to be delivered by the Plaintiff to the Defendant simultaneously with the payment by him to her of the amount of $50,000.
(d) As between the Plaintiff and the Defendant, and subject to the above orders, each shall retain all right, title, and interest in and entitlement to, personal and other property in her and his, respective possession or control;
(e) In the event that the Defendant, fails, or neglects, to comply with orders (b) or (c) hereof, the matter may be re-listed for the making of orders for the appointment of trustees for sale of the property, and consequential orders;
(f) Either party is to have liberty to apply in respect to the implementation of these orders.
(g) The Defendant’s cross-claim otherwise be dismissed.
(h) These orders shall be entered forthwith.
(i) The Defendant should pay the Plaintiff’s costs, such costs to be calculated on the ordinary basis, of the proceedings.

CATCHWORDS: FAMILY LAW - De facto relationships - adjustment of property interests - s 20 Property (Relationships) Act 1984 (NSW) - 11 year de facto relationship - two children of parties - trust claim by Defendant - matter proceeds on undefended basis - no appearance by Defendant - evidence of the financial contributions to the acquisition, conservation or improvement of property or to the financial resources of the parties - value of property poorly substantiated - financial contributions unequal - non-financial contributions and contributions as homemaker considered - HELD: just and equitable to make an order adjusting the interests of the parties in property - Plaintiff ordered to transfer her interest and title in the real estate owned jointly with the Defendant to the Defendant on condition that he pays to her $50,000

LEGISLATION CITED: Property (Relationships) Act 1984
Uniform Civil Procedure Rules, 2005
Conveyancing Act 1919
Family Law Act 1975 (Cth)

CATEGORY: Separate question

CASES CITED: Bilous v Mudaliar [2006] NSWCA 38
Black v Black (1991)…

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 Haley v Perkins

Details

AGLC: Haley v Perkins [2010] NSWSC 1091
Case: [2010] NSWSC 1091
Decision Date: 1 October 2010

CaseChat Overview and Summary

In the Family Court of Australia, Haley, the Plaintiff, brought an action against Perkins, the Defendant, seeking an adjustment of their property interests under section 20 of the Property (Relationships) Act 1984 (NSW). The parties had been in a de facto relationship for eleven years, during which they had two children together. The Defendant did not appear or defend the matter, which proceeded on an undefended basis. Haley sought an adjustment of the property interests based on the contributions made during the relationship and the value of the property held jointly.

The court was tasked with determining whether it was just and equitable to make an order adjusting the interests of the parties in the property, given the evidence of the financial contributions to the acquisition, conservation, or improvement of property or to the financial resources of the parties. The Plaintiff provided evidence of the financial contributions made during the relationship, which were unequal. The value of the property was poorly substantiated, but the court considered the non-financial contributions and contributions as a homemaker. The court weighed the evidence and found it was just and equitable to make an order adjusting the interests of the parties in the property.

The court ordered that the Plaintiff transfer her interest and title in the real estate owned jointly with the Defendant to the Defendant on the condition that he pays her $50,000. The court took into account the length of the relationship, the contributions made by both parties, and the best interests of any children of the relationship in making its decision. The outcome of the case reflects the court's duty to make orders that are just and equitable in the circumstances.

Orders