Huber v Vollmer

[2004] NSWSC 703

CITATION:	Huber v Vollmer [2004] NSWSC 703
HEARING DATE(S):	02/08/2004, 03/08/2004
JUDGMENT DATE:	24 August 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	Paragraph 78
CATCHWORDS:	Family Law. Application for property adjustment under Property (Relationships) Act 1984. Consideration of contributions. No matter of principle.
PARTIES :	Guenter Hauber-Davidson v Gisella Vollmer
FILE NUMBER(S):	SC 2637 of 2002
COUNSEL:	P. Sansom for plaintiff J. Lloyd for defendant
SOLICITORS:	Watts McCray for plaintiff Stuart Fowler & Partners for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Tuesday 24 August 2004

2637/02 Guenter Hauber-Davidson v Gisella Vollmer

JUDGMENT

1 Master: This is the hearing of proceedings pursuant to the Property (Relationships) Act 1984 (NSW) (the Act) for an adjustment of the parties’ property interests under s 20 of the Act. Between April 1994 and January 2001 the parties lived in a de facto relationship. They had one child, Toni who was born on 24 March 1997. The defendant’s child from a previous marriage, Dennis, also resided with the parties.

History of the relationship

2 The defendant (now aged 52) was born in Winnenden, Germany on 30 July 1952 and the Plaintiff (now aged 42) in Stuttgart, Germany on 8 February 1962.

3 In 1980 the defendant and Michael Herrmann’s son Dennis Vollmer (now aged 23) was born.

4 In 1981 the plaintiff completed his high school studies in Stuttgart, Germany. In 1985/86 the plaintiff studied at the University of Calgary in Canada under a scholarship. In 1988 he completed his Civil/Environmental Engineering Degree Course. Subsequently he obtained employment as an Environmental Engineer.

5 In 1990 the plaintiff received a post Graduate Research Scholarship to study in Auckland, New Zealand. In 1991 the plaintiff moved to the South Island of New Zealand. He was employed by the New Zealand Ministry for Agriculture and Fisheries for 3 years and earned between $NZ45,000.00 and $NZ60,000.00 per annum.

6 Between 1994 and 1997 the plaintiff worked for a large consultant engineering company and his earnings were between $NZ60,000.00 and $NZ70,000.00 per annum.

7 It was in April 1994 that the parties commenced living together in a de-facto relationship in Dunedin, New Zealand. At that time the plaintiff owned a number of residential investment properties that were subject to a mortgage to the Post Office Bank. After moving to New Zealand the defendant worked sporadically. The defendant’s son Dennis Vollmer born on 24 October 1980 resided with the parties.

8 In 1996 the parties established a company known as International Consulting Network Pty. Limited (ICN) as a vehicle for their employment. The plaintiff held 8 shares and the Defendant 2. Both were Directors. At this time the parties had a number of discussions about migrating to Australia. To facilitate migration, the plaintiff progressively sold his investment properties in New Zealand.

9 On 1 October 1996 the plaintiff sold 263 High Street, Dunedin for $NZ160,000.00 and applied the proceeds towards the outstanding mortgage to the Post Office Bank.

10 On 24 March 1997 there was the birth to the parties of their child Toni Vollmer in New Zealand (now aged 7).

11 In April 1997 the parties, their child and the defendant’s son Dennis moved to Sydney. Thereafter they resided in Sydney. On 4 April 1997 the plaintiff sold 173 Victoria Street, Dunedin for $149,500.00 and applied the whole of the proceeds towards the outstanding mortgage to the Post Office Bank.

12 On 5 May 1997 the plaintiff sold Duncan Street, Dunedin. The sale price was $NZ154,300.00. From the proceeds of sale the balance owing to the Post Office Bank in respect of that property and the Tomahawk Road properties were repaid and the plaintiff received $NZ62,816.19. This was remitted to him in Australia and applied to moving expenses, settling in Australia and to the purchase of the Putney property.

13 On 26 November 1997 the settlement of the sale of 229A Tomahawk Road, Dunedin took place. The sale price was $NZ16,500.00. The plaintiff received $AUD15,182.36 from the sale which was remitted to his Sydney account.

14 In December 1997 the parties purchased the property at 32 Parry Street, Putney, New South Wales, which they had been renting. The purchase price was $440,000.00.

15 After the parties moved into the Putney property they carried out the following renovations:

§ Purchase of the dishwasher

§ Installation of new gutters

§ Installation of the solar pool heating

§ Erection of two large garden sheds

§ New drainage and associated concrete cutting

§ Planting new garden and more concrete cutting

§ Erection of a new awning over the front entrance and cover on the western side of the house

16 The plaintiff paid for these renovations from the funds he earned as well as the balance of the funds which he received on the sale of his New Zealand properties.

17 In 1998 the plaintiff was offered and duly accepted a position as Project Engineer for the Sydney Water North Side Storage Tunnel earning between $AUD100,000.00 and $AUD106,000.00 per annum.

18 In 1999 the parties purchased a timeshare at Korora Bay, Coffs Harbour for $10,000.00 in their joint names with the monies earned by the Plaintiff.

19 The plaintiff paid the mortgage repayments to the Commonwealth Bank from the time of purchase until January 2002 (this would equate to approximately $53,000.00).

20 In 2001 as his employment project neared its completion, the plaintiff went back to contract work through ICN.

21 It was in January 2001 that the parties separated while remaining under the same roof. In January 2002 the plaintiff moved from the jointly owned home at Putney. On 27 March 2003 orders were made by consent between the parties in the Family Court as to children’s issues. As a result, the parties’ child resides primarily with the defendant and has contact with the plaintiff.

The property of the parties at the commencement of the relationship

22 At the commencement of cohabitation the parties agreed that the Plaintiff owned the following assets namely:

§ 37 Duncan St., Dunedin NZ. This had been purchased for NZ $124,000.00 and the plaintiff had spent NZ $45,000.00 on improvements in anticipation of the parties commencing to reside together.

§ 263 High St., Dunedin NZ. This was purchased for NZ $150,000.00 in 1993

§ 173 Victoria St, Dunedin NZ. This was purchased for NZ $147,500.00 in 1993

§ 229A Tomahawk Rd Dunedin NZ. This was purchased for NZ $53,000.00 in 1993

§ Akatora Forestry partnership

§ Parikana Forestry partnership

§ Nissan Bluebird then worth NZ $5,000.00

§ Life Insurance with a then value of NZ $4,100.00

§ Heimstatt Savings Contract in Germany with a then value of NZ $4,000.00

§ Shares then valued at NZ $18,000.00

23 In addition, the plaintiff was the owner of a property at Fichtenstresse 15, Wennenden, Germany which had been given to him as a gift in 1993 by his parents “by way of a pre-arranged inheritance direction between his parents and their siblings”.

24 The plaintiff had liabilities at this time of NZ $329,100.00 being a mortgage to the Post Office Bank Limited of New Zealand. There is a dispute as to whether the plaintiff had sundry liabilities of about $2,000.00.

25 At the commencement of cohabitation the defendant had the following assets: -

§ Professional camera equipment; estimated at NZ $18,500.00

§ Furniture and household chattels; estimated at NZ $24,800.00

§ A Mitsubishi L300 motor vehicle; estimated at NZ $12,000.00

§ Cash in NZ being either $38,198.00 on the Defendant’s evidence or on the Plaintiff’s $19,000.00;

§ Life insurance in Germany worth NZ $11,817.00;

§ Savings in Germany of 10,000 DM estimated at NZ $11817.00;

26 When she relocated to New Zealand the money used by the defendant for airfares and moving costs amounted to NZ $15,000.00.

27 After she arrived in New Zealand the Defendant thus contends that she had assets of $117,132.00. However it seems that in respect of the cash in New Zealand she owed $19,000.00 to her brother as these were his monies that he left with her for his future use when he came to that country.

The property of the parties at the conclusion of the relationship

28 At the conclusion of the relationship the parties still owned substantially the same property as at the time of the hearing. At the time of the hearing the property and its value was as follows:

1. Jointly owned property at 32 Parry Street Putney: agreed value $875,000.00.

2. Jointly owned timeshare at Korora Bay: agreed value $1,000.00

3. The plaintiff's partnership interest in the Akatora forestry venture: the value of this amounted to $40,915.00.

4. The plaintiff’s partnership interest in the Parikana forestry venture: the value of this amounted to $46,764.00.

5. The plaintiff's property in Germany. This has not been valued.

6. The plaintiff’s life insurance: determined at $13,600.00.

7. The plaintiff’s superannuation: determined at $17,000.00 being its 2001 value.

8. Interest in the company ICN: the value of the company amounted to $19,196.00.

9. Subaru Liberty car estimated by the defendant to have a value of $7,500.00 at separation, which was retained by the defendant.

10. Furniture and furnishings. By agreement, these were divided between the parties to substantially reflect their contributions and can be disregarded.

11. The defendant's photographic equipment: estimated at $15,000.00, and was retained by the defendant.

12. The defendant's life insurance retained by her: determined at $11,917.00.

13. The defendant's CBA award points, which have no value.

29 The liabilities of the parties at the present time are as follows:

1. Joint liability to the Commonwealth Bank Putney: $134,875.00.

2. Plaintiff’s loan with Volksbank: E31,852.00 at current exchange rates $45,559.00.

3. Plaintiff’s Heimstatt Loan: $14,287.00.

30 There are a number of other loans that the plaintiff obtained for the purposes of purchasing the house at Putney. The extent of these loans and the plaintiff’s liability in respect of them is a matter in dispute. I will return to these loans after dealing with the financial contribution to the purchase of the house.

Financial contributions

31 The parties’ principal purchase was the house at 32 Parry Street Putney. The purchase price was $440,000.00. As to such purchase:-

32 The parties agree that they borrowed $160,000.00 from the Commonwealth Bank (refinanced from Queensland State Home loans).

33 The parties agree that the Plaintiff obtained DM 70,000.00 from his brother Bernd Hauber who died in January 1999. The amount received in Australia from this loan was $AUD57,947.00 and it was applied to the purchase of the Putney property.

34 The parties agree that DM 200,000.00 was obtained from the Volksbank in Germany. The Plaintiff refers to this as his parent’s loan. The amount received in Australia from this loan was $AUD165,563.00 and was applied to the purchase of the Putney property.

35 The plaintiff also obtained an amount of DM 30,000.00 from his parents as a “second loan”. The amount received in Australia was $AUD24,834.00 and was applied to the purchase of the Putney property.

36 The plaintiff also borrowed the sum of DM 30,000.00 from Heimstatt and the amount received in Australia was $AUD24,834.00 which was applied to the purchase of the Putney property.

37 In addition, the Plaintiff applied from his own funds which he received from the sale of the New Zealand properties as follows:

About $6,000 towards the purchase price;
Mortgage fee $1,600;
Stamp Duty $15,500;
Legal fees $1,150
Total $24,250

38 The amount, which he finally received from the sale of the New Zealand properties, was in the order of AUD$74,000.00.

39 The plaintiff’s cash contribution therefore appears to be the sum of about $AUD279,178.00. The total of this amount and the loan comes to $AUD439,178.00.

40 The defendant appears to have contributed DM 7000.00 at the time of the purchase. That amount converts to about $AUD5,794.00. Thus the parties contributed approximately 64 percent of the purchase price of the property. The balance, namely 36 percent was borrowed from the bank. Since the time of purchase, the property has increased in value from $AUD440,000.00 on purchase to its present value of $AUD875,000.00. The overwhelming portion of the cash contribution came from the plaintiff. I will refer later to the contributions made over the years to the payment of the mortgage after the purchase of the property.

The plaintiff's loans for the purchase of the property

41 The sum of DM 200,000.00 that was made available by the plaintiff’s parents was borrowed from a German bank. Using the Fichten Strasse property as security, the plaintiff’s parents were able to raise that amount. According to the plaintiff's evidence it was agreed between him and his parents that the loan would be repaid on demand and the current bank interest rate of 6 percent was payable. The Plaintiff’s parents who were perfectly able to give evidence gave no such evidence nor was any documentation tendered in the proceedings to support the plaintiff's claim. The same comments apply to the second loan of DM 30,000.00.

42 On the evidence it is plain that neither the plaintiff nor the defendant have made any payments towards the principal or interest on those loans. The plaintiff claims that he still owes the amount of the second loan to his parents. In respect of the first loan, the amount that was borrowed from the German bank has at the present time been reduced to an amount of EU31,952. The only source of funds for the repayment of that bank loan is the rental income received in respect of the property or payments made by his parents who the plaintiff claims serviced the loan. I accept the plaintiff's evidence that the property was leased over the relevant period. His parents appear to have had their home in a separate place and they have made arrangements similar to that made with the plaintiff with their other children for the transfer of investment property to each of them. Apparently this forward transfer was undertaken in anticipation of there being an increase of some taxes in Germany.

43 It probably does not matter whether or not it was the plaintiff who is entitled to the income from the property or his parents. Evidence was given by a German solicitor who acted for his parents as to the meaning of the deed by which the transfer of the property to the plaintiff was effected. Although the deed was not translated, the evidence of the solicitor was that the parents were entitled to the rent. In the absence of any other evidence I will accept this version of events.

44 It is clear that the parents have made no demand for the repayment of the loans and a real question must arise as to whether there was indeed a loan or whether what transpired can be better characterised as a gift.

45 The loan from the plaintiff's brother of DM 70,000.00 is said to be documented. No repayments have been made off the loan and according to the plaintiff the full amount remains due together with interest outstanding. The plaintiff’s brother died in January 1999 and according to the plaintiff whose evidence I am prepared to accept on this matter, the loan passes on his brother’s intestacy to his parents. They can demand repayment on three months notice.

46 Evidence was given by the defendant of the plaintiff having said on his return from Germany after his brother's death that he no longer needed to repay the loan. It is not possible to form a conclusion in respect of this matter unless one had the evidence of the parents, which the plaintiff has chosen not to call. In the absence of any demand for the money over the last three years and the fact that plaintiff has recently made substantial payments off his Commonwealth bank mortgage it is unlikely that there is any real prospect that these amounts being called upon in the near future.

47 It is appropriate at this point to consider how the court would regard the provision of the money as a result of the parents and brother’s loans or alternatively gifts. This has been dealt with in a number of cases both in respect of this act and the Family Law Act 1975 (Cth). In the marriage of Gosper (1987) 90 FLR 1 Mr Justice Fogarty analysed a number of Family Law cases before making a useful statement as to principle. At page 11 he said:

“Where there has been a gift or advance by a relative to one or both of the parties to the marriage the first step is to determine the ownership of that benefaction: … Confusion often arises at this point because, particularly with gifts of money or in kind, the evidence about it is confused and imprecise and the actual intention of the donor (the critical issue) may have been ill-defined. However, where the evidence enables court to determine that it is a gift to one or other or both of the parties, that is an important finding. Normally where title to a property is transferred to one or both of the parties that would be the strongest indicator of the intention of the donor.”

48 Having regard to the facts in that case, that the gift of property was given jointly to the two parties, he went on to decide that there was an intention to give it to the parties jointly. Fogarty J also made reference to be "rule of thumb" referred to by Hodgson LJ In the marriage of Samson [1960] 1 All ER 653 at 656 in these terms:

“Where there is evidence of intention on the part of the donor it may well be that wedding presents may be found to have been given either to one spouse or to the other, or to both; but where no intention is clear the court is fully entitled to draw the inference (which was drawn in this case) that money and gifts in kind originating from one side of the family were intended for the husband and those from the other side, from friends of that party, were intended for the wife.”

49 I am of course not dealing with wedding presents but a substantial provision of funds by the plaintiff's parents and brother.

50 The defendant's submission was that as the defendant had herself met the plaintiff’s brother, the provision of the funds from him should be considered as a provision to both the plaintiff and the defendant. A similar submission was made in respect to the provision of the funds by the plaintiff's parents. In this regard, it is necessary to look at the evidence.

51 In respect of the loan from the plaintiff's brother, I have earlier referred to the fact that he stated that the loan was documented. According to the defendant, a document was created in April 1998 but was never signed by the plaintiff’s brother. Not even an unsigned document has been tendered. The plaintiff in his affidavit talks of the amounts being remitted to him and being used as part of the purchase monies. No documents have been tendered showing which account it went into when it arrived in Australia or perhaps transferred to the plaintiff or the parties in Germany. The only evidence of the defendant meeting the plaintiff gives no time frame. It may have been before or after the purchase. There is no evidence of any discussion with the plaintiff’s brother that might indicate his intentions. There is no evidence of whether or not the brother knew the property was being purchased jointly in both names.

52 In respect of the parents’ loans, in his affidavit the plaintiff once again indicates that the amount of each loan was remitted to him in Australia. It is clear that the plaintiff's parents borrowing of the funds from the German bank was arranged by them in the sense of execution of documents on behalf of the plaintiff who was the owner of the property in Germany. Apparently the plaintiff's mother had a power-of-attorney from the plaintiff, which enabled her to sign the documents. None of those documents have been tendered.

53 There is in fact no evidence as to whether or not the plaintiff's parents knew that the property in Putney was being purchased in joint names.

54 In essence, there is no evidence to suggest that in either case there was provision to both the parties. In these circumstances the only inference that can be drawn from the relationship between the parties is that the provision of these funds should be regarded as being provided to the plaintiff and are therefore his contributions.

55 During the period of the relationship after the purchase of the property at Putney, it was the plaintiff who made the repayments on the mortgage. These repayments continued up until the time he left the property in January 2002. That this is so is not surprising considering the higher income of the plaintiff. Thereafter there was a hiatus of six months after which the defendant commenced making mortgage payments of $890.00 per month.

56 There is no doubt that with one exception the parties used their income for the benefit of their joint enterprise. The only exception was that the defendant received childcare payments from Dennis's father, which she retained in her German bank account. The present amount is not large and can be ignored.

57 In the period the parties lived in New Zealand, the plaintiff earned between $NZ60,000.00 and $NZ70,000.00 per annum. The defendant had her own business as a photographer and in the three years ended 31 March 1995, 1996 and 1997 she had an income of $NZ31,202.00 plus $NZ6,000.00 received in cash. When the parties returned to Australia, the plaintiff as I have earlier indicated earned between $AUD100,000.00 and $AUD106,000.00 per annum up until the year 2001. Thereafter he went back into business as a consultant and has been earning wages of approximately $AUD50,000.00 per annum. For the financial years ended 30 June 1998, 1999, 2000 and 2001 the defendant had a total income of $AUD27,370.00 being an average rate of $AUD6,942.00 per annum. Naturally enough given the parties’ child, the defendant could only work on a part-time basis and the plaintiff concedes that she had the overwhelming share of day-to-day parenting responsibilities.

58 In respect of the Parikana Forestry Partnership, it appears that the defendant's sum of NZ $19,000.00 was utilised for the acquisition either in whole or in part by the plaintiff of his interest in the partnership. The plaintiff gave no other evidence of the contributions to this partnership. In respect of the plaintiff’s interest in the Akatora Forestry Partnership this appears to have been created from funds paid from time to time by the plaintiff out of his income.

59 Since the plaintiff went back into business on his own account in 2001 he has used the company ICN. He has continued to do so throughout the period after the separation and has recently by issuing further shares, flooded the defendant's interest in the company. Apparently the defendant did not attend the meeting called for this purpose. The only purpose of the company over last few years has been as a vehicle for the plaintiff’s consultancy business and it is appropriate that the two remaining shares held by the defendant be transferred to the plaintiff. Any increase in the value since separation would seem to be as a result of the efforts of the plaintiff separate from the relationship and should accrue to him.

60 In respect of the plaintiff’s property in Germany, it is plain that it was transferred to him by his parents in anticipation of his ultimate inheritance of the property. The transfer took place prior to the parties commencing cohabitation. Neither party has made any contribution to the property and in these circumstances it would be appropriate to put to it one side for the purposes of the exercise of adjusting the parties’ property interests.

Non-Financial contributions

61 Insofar as the household tasks were concerned, the parties are agreed that the task was shared with the defendant performing the most of those tasks. So far as cooking was concerned, the plaintiff says that work was shared although he agrees that the defendant performed most of these tasks. The defendant also washed the car. This pattern apparently applied for the entire period the parties lived together.

62 So far as parenting contributions are concerned, the child of the parties was born in 1996. The plaintiff conceded that the defendant was the primary carer of the child. This is not to say that he was not interested in the child and he did become involved in her life.

63 It will be recalled that the plaintiff had three investment properties in New Zealand for the period up until the parties left New Zealand. Until those properties were sold, the defendant contributed in a substantial way by her efforts in managing the properties between March 1994 and April 1997. These activities included physical attendance on the properties to collect rents from some twelve tenants each week or fortnight. The defendant cleaned the properties in between tenants, arranged for the carpets to be cleaned and tendered to similar matters. On the change of tenants, she advertised and arranged the completion of the tenancy agreements that were signed by the plaintiff. She was ‘on call’ to fix matters when and where there were complaints by the tenants.

64 Apart from property management there were improvements and renovations carried out by the defendant to the three properties. These included painting, changing carpets, staining and polishing floorboards, wallpapering and the like. The defendant's estimate of the time spent managing the properties was put by her at ten hours per week not including the time spent on the renovations. The plaintiff put that at between three and five hours per week with him doing one to two hours work himself. For tax purposes the plaintiff paid the defendant a wage of $125.00 per week to manage the properties. The actual funds were used for their joint purposes.

65 It is apparent that notwithstanding the parties doing a substantial amount of work (with the defendant actually doing by far the greater part) the rent did not exceed the mortgage and other expenses in respect of the properties. The losses varied over the years between approximately $4,500.00 and $13,000.00.

Consideration of the contributions

66 In this regard, it is apparent that there were two different stages in the parties’ relationship. The period up until when the parties left New Zealand is a discreet period in which one finds the plaintiff at the commencement having a number of houses that were rented. Plainly the defendant contributed the greater share of the work involved in managing these properties. The plaintiff acknowledges this. In addition, she had a greater role than the plaintiff in the caring for their child and the carrying out of household tasks.

67 Unfortunately for the parties, the downturn in the New Zealand economy meant that they only realised about $AUD74,000.00 after all properties were sold. There is no doubt it was the plaintiff who put up what little capital went into the properties and bore the burden of the mortgage. Precise details of what was paid by him are not available but it would seem clear that the funds which the parties eventually brought to Australia should be regarded as having been contributed to by both of them with perhaps the plaintiff being credited with the slightly higher than a half share in respect of that sum.

68 A submission was made that I should disregard the overwhelming contribution of the plaintiff to the purchase price of the property at Putney because of the effluxion of time. This submission was based upon what is sometimes referred to as the erosion of early financial contributions. I referred to this matter in detail at paras 24-33 in Parn v Parn [2003] NSWSC 110. I will not repeat what I said except to refer to the following:

“30. In 1999 in Pierce v Pierce (1998) FLC 91-844, Ellis, Baker and O'Ryan JJ declined to use Fogarty Js erosion principle in considering the husband's substantial financial contribution at the commencement of a ten year marriage. The Court stated, at 85881
‘In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached in all the circumstances, to the initial contribution. It is necessary to weight the initial contribution by a party with all other relevant contributions of both husband and wife.’
……………

33. The comments of the Judges in this case with their emphasis on the assessment of the contributions does nothing to detract from the position that the Family Court has adopted as exemplified by Pierce v Pierce. ”

69 It is to be appreciated that in this case contributions to the house at Putney only occurred some three years before the end of the relationship. This is an extremely short time and one has to balance that time with the extent of the other contributions by the defendant. Over the four years the parties had a child nearly all the parenting responsibility or contributions were borne by the defendant. There is also a balance in favour of the plaintiff in respect of homemaking contributions over this period and the whole of the relationship from April 1994.

70 I have earlier indicated that as a result of the work done by the defendant she would be entitled to some credit in respect of the $74,000.00 the parties brought to Australia and used on the Putney property.

71 There was a submission that when considering the contributions I should take account of the fact that the defendant has had occupation of the property after June 2000. The property has a rental value of about $400.00 to $410.00 per week. Since separation, the defendant has paid for a number of repairs to the property and has done some painting work. She has met all Council rates, insurance, water rates and other expenses for the house. In addition, from July 2002 she has been making mortgage repayments in the sum of $872.00 per month. Having regard to these matters and the fact that the property has been used as a home for the parties’ child I think it is inappropriate that there be any charge or an account taken for the rental value of the property occupied by the defendant.

72 In respect of the two forestry investments, the defendant substantially contributed one of them. The plaintiff contributed to the other. It is probably appropriate that they remain with the plaintiff but that the defendant’s contribution be taken into account in the overall assessment of contributions and the ultimate division of the sale proceeds of the Putney property.

73 The provision of funds to the plaintiff by his brother and parents generated much heat as to whether or not the amounts are in fact repayable by him. In my view it is appropriate to have regard to those amounts as contributions on the part of the plaintiff to the purchase of the Putney property. Whether or not he ultimately repays the funds is in a sense irrelevant. In the event that there is some unknown liability of the defendant, all that needs to be done is that the plaintiff should indemnify her in respect of the repayment of those funds.

74 There was also a submission by the defendant that the broad reality was that the relationship included their child and that one should take into account the ongoing commitment, which the defendant adopts in maintaining the child. This submission is somewhat outside the range of considerations that the Court has regard to when carrying out its functions under the Act. Provision for the ongoing support of a child is contained in Commonwealth legislation regarding such child support and would be considered by the Court as ‘present and future needs’ not ‘past contributions’ as provided for by the Act.

75 In the recent matter of Rose v Richards [2004] NSWSC 315 McLaughlin M, relevantly considered the operation of s 20 of the Act. After making reference to Powell JA’s discussion of the disparity between the Act’s regime in contrast to that in force under the Family Law Act in Jones v Grech, at paras 37-38 the Master stated:

“As I understand the foregoing decisions of the Court of Appeal, it is not legitimate for the Court to have regard to present or future needs of the parties; it should have regard only to contributions of the nature set forth in the subsection. (See Matheson v Wallis [2001] NSWSC 931, McLaughlin M, 22 October 2001, an appeal from which was dismissed by the Court of Appeal on 11 October 2002, sub nomine, Wallis v Matheson [2002] NSWCA 350.)

It is clearly necessary in this regard to exercise the caution counselled by Powell J in Roy v Sturgeon. The principles disclosed in the relevant provisions of the two statutes are that the Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks to present and future needs.”

76 In submissions, the defendant suggested that an appropriate division would be a fifty-fifty split of the proceeds of the sale of the Putney house after payment of expenses and the mortgage. That submission was predicated on a treatment of the loans from the plaintiff’s parents and brother as being tendered for both parties. As I have indicated above I do not accept the defendant’s submissions in this regard. The plaintiff contended for a split of 30 percent to the defendant and 70 percent to the plaintiff.

77 As well as the substantial recent contributions to the capital of the property the plaintiff has paid the substantial part of the mortgage payments including some additional payments over and above that which was required. These payments, which totalled $27,000.00, were made shortly prior to the parties’ separation.

78 In my view and having regard to the whole of the evidence, some of which I have referred to in this judgment and the considerations which I have addressed, I think an appropriate adjustment of the parties’ interests would be achieved by an order for sale of the Putney property and a split between the plaintiff and the defendant of the net proceeds after discharge of the mortgage and expenses of 70 percent to the plaintiff and 30 percent to the defendant.

79 The parties are to retain the property in their present possession and this adjustment takes into account and recognises that the plaintiff will retain the New Zealand forestry investments and his property in Germany.

80 I direct the parties to bring in short minutes.

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Last Modified: 08/27/2004