Jones v Stacpoole

[2002] NSWSC 907

CITATION:	Jones v Stacpoole [2002] NSWSC 907
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 2198/2001
HEARING DATE(S):	19 & 20 September 2002
JUDGMENT DATE:	4 October 2002
PARTIES :	Noelene Ann Jones (Plaintiff) Raymond Stacpoole (Defendant)
JUDGMENT OF:	Acting Master Berecry

COUNSEL :	Ms C Conomos (Plaintiff) Mrs R Ashes (Defendant)
SOLICITORS:	Vizzone Ruggero & Associates (Plaintiff) Birch Partners (Defendant)
CATCHWORDS:	Property (Relationships) Act - long relationship - children of relationship - distinct period of relationship - contribution of proceeds of damages claim - inference to be taken from use of contribution in the absence of specific evidence - post separation contribution
LEGISLATION CITED:	Property (Relationships) Act 1984 - s 20
CASES CITED:	Re Marriage of Rolfe (1978) 26 ALR 219 Mallet v Mallet (1984) 156 CLR 605 Gazzard v Winders (1998) 23 FamLR 716 Fuller v Taaffe 23 FamLR 702 at 712 Flett v Brough (NSWSC, unreported, McLaughlin M, 20 November 1998) Wallace v Stanford (1995) 37 NSWLR 1 Evans v Marmont (1997) 42 NSWLR 70
DECISION:	See para 44

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY

FRIDAY, 4 OCTOBER 2002

2198/2001 - NOELENE ANN JONES v RAYMOND STACPOOLE

JUDGMENT

1 MASTER: On 12 April 2001 the plaintiff filed a statement of claim seeking orders pursuant to s 20 of the Property (Relationships) Act 1984. In essence the plaintiff seeks to have the property known as 344 Lawrence Hargrave Drive, Scarborough transferred to her within in 42 days upon her making payment to the defendant of the sum equivalent to $200,000.00.

2 On 1 June 2001 the defendant filed a defence and cross claim. The cross claim seeks an order that the defendant pay to the plaintiff within 90 days the sum of $50,000.00. Upon payment of that sum the plaintiff be ordered to transfer her interests in the Scarborough property to the defendant. The defendant also seeks ancillary orders in the cross claim.

3 The parties commenced to live together in a defacto relationship in 1987. The plaintiff asserts that the relationship commenced in March of that year, whereas the defendant asserts that the relationship commenced in September of that year. In any event, in makes little difference to the duration of the relationship. Both parties agree that the relationship ended on 17 January 2001. Therefore, the relationship lasted some 13 years.

4 At the commencement of the relationship the parties had the following assets.

The plaintiff

5 Household furniture and chattels with the an estimated value of $5,000.00. A personal injury claim in respect of injuries she sustained in a motor vehicle accident in 1985.

(1) A block of land at Margaret River, Western Australia valued at $16,500.00.

(2) A house on land at 315 Lawrence Hargrave Drive, Clifton. Estimated value $45,000.00.

(3) Household furniture. Estimated value $1,000.00.

(4) Motor vehicle $700.00

6 When the relationship commenced the defendant moved in with the plaintiff. At that time she was renting accommodation at 20 Goodrich Street, Scarborough. The weekly rental was $40.00. It is asserted by the plaintiff that that was below the market rent. However, the reason she was able to obtain a below market rent was because the property was rented from friends. The defendant’s property at Clifton was rented and the defendant was receiving $80.00 per week. The parties resided at Goodrich Street until April 1992. There is no dispute that the parties were in a defacto relationship.

7 The areas in dispute between the parties relate to the contributions made by the plaintiff of both financial and non-financial contributions.

The plaintiff’s position

8 The plaintiff contends that she made both financial and non-financial contributions to the relationship. Between 1987 and 1995 the plaintiff held down the following employment:

9 From 6 July 1989 until 1 September 1989 employed at a sandwich shop at Fairymeadow. March/April 1991 employed for two weeks a calligrapher for David Jones. Eight months at Blue Water Takeaway in Thirroul as a cook and shop hand. In 1993 three months part-time work in the Imperial Hotel, Clifton as a cook. Between 1989 and 1994 worked as a cook in hotels and retail outlets on a part-time basis. From 1990 until 1994 employed as a ticket and sign writer and calligrapher for retail outlets, including David Jones, Wollongong. 1993 until 1995 assisted the defendant in his business Bazza’s Home Improvements.

10 During this period the plaintiff also attended TAFE and undertook a number of courses. Those courses being.

1989/1990 Two year Showcard and Ticket Writing Certificate Course.
Hospitality course

1991/1992 Two year Calligraphy Course at credit level
1992 One year Print Making Course
1993 Air Brushing Course and Adults Teaching Course (not completed)

11 In 1990 the plaintiff also undertook private lessons in calligraphy.

12 During the period 1987 until 1994 the plaintiff earned the following income from employment and social security $27,802.00 (Ex A and Ex4).

13 The plaintiff’s evidence is that both parties put their money together. She was suffering from the effects of the injuries she had in 1985 and on her own evidence could not do any heavy lifting, but was able to carry out most household duties, notwithstanding that she was suffering pain and discomfort whilst doing so. Her evidence is that she relied on the defendant’s income. The plaintiff concedes that the rental money received from the Clifton property did go towards general household expenses, rent on the Goodrich Street property as well as renovations to the Clifton property. Her evidence was that she performed most household tasks and the majority of the cooking.

14 In 1992 the defendant decided to sell the Clifton property. The plaintiff’s evidence is that she assisted with renovations on this property. She assisted him in purchasing material, handing him tools, and material at various times when renovations were conducted on the building. When the defendant decided to sell the property her evidence is that she arranged for the sale of the property by taking telephone calls, placing adds in the paper and generally being available to show people the property (Ex F).

15 In cross examination the plaintiff conceded that between the commencement of the relationship and July 1989 she did not work. During this period she was recipient of social security and was dependant on the defendant. Much of the work done by the plaintiff between 1987 and 1992 was piecemeal and part-time. By way of example, when she worked in the sandwich shop in 1989 it was only during the lunchtime period, and over a three month period she received only $240.00. Her evidence also was that during this period she was having trouble with her neck and her back. The plaintiff conceded that the defendant was contributing his income to the household. During this period the plaintiff asserts that she assisted the defendant with the Margaret River property. Although she has never visited the property her assistance was to insure that bills were paid when they came in and to liaise with the local bush fire brigade for the annual burn-off. Much of this evidence was disputed by the defendant. In my opinion it was a minimal contribution that the plaintiff made to this property. In 1991 the periods of the plaintiff’s employment meant that she worked between two and five hours per day and was paid an hourly rate of $8.00-$10.00 per hour.

16 At the time of the sale of the Clifton property the parties agreed to purchase another property. Agreement was reached that the plaintiff would have an interest in the new property. In 1989 she received a judgment in the sum of $50,000.00 in respect of the 1985 motor vehicle accident. The plaintiff’s evidence is that she received the sum of $25,713.95 net from the proceeds of the judgment. Her evidence is that the money was expended in the following manner. $14,000.00 was placed in an IMB Building Society account, $6,300.00 was invested with St George Building Society, and after payment of $1,025.62 to the Department of Social Security the balance of $5,713.00 was put towards general living expenses and the purchase of a stereo, a new fridge, and the purchase of a Datsun 1600 for $1,000.00.

17 Prior to the purchase of the Scarborough property the parties spent some six months looking at properties before settling on that particular property.

18 The purchase price of Scarborough was $145,000.00. The defendant put $127,600.00 towards the purchase price and paid $3,140.72 towards stamp duty. The balance of the money, namely $18,000.00 was contributed by the plaintiff. The plaintiff’s evidence is that her cash contribution was approximately $20,000.00. It seems to me that the parties’ evidence was not too far apart in respect of the plaintiff's contribution towards the purchase price of that property.

19 The parties agreed that the interest that they had in Scarborough was adequately reflected by the plaintiff having 3/25 shares and the defendant having 22/25 shares. The apportionment that they agreed upon approximates the financial contribution that each made to the property. There was an issue over whether or not the apportionment also took into account non-financial contributions that the plaintiff may have made in the years between 1987 and 1992. However, it seems to me when one takes into account they apportionment and the purchase price that the intention clearly reflected no more than the financial contributions each made towards to acquisition of the property. Much was made of the fact that by April 1992 the plaintiff had exhausted the funds she received pursuant to the personal injury claim. However, it seems to me that both parties acknowledge that the plaintiff made the financial contributions towards the purchase of the Scarborough property. The issue concerned the balance of the monies that she received from the judgment.

20 The defendant concedes that the plaintiff purchase a new refrigerator for $1,123.00 and a motor vehicle for $1,000.00. However, he denies that she contributed the sum of approximately $5,700.00 toward general living expenses. His evidence is that living expenses were paid from his earnings. Whilst much of the plaintiff’s evidence was vague and conversely the defendant was very direct and firm in his responses to questioning, I am of the view that the plaintiff is not a dishonest person, and that she tried to the best of her ability to answer questions truthfully. There has been no evidence put on by the defendant which would tend to establish that the plaintiff used the monies for her own purposes, or acted as a spendthrift, or wasted her funds. Indeed, in cross examination, she admitted that during the course of the relationship she did not have a bank account or a cheque account other than, of course, the investment funds with IMB and St George. It seems to me that it is quite safe to draw the inference that between 1989 and 1992 the plaintiff contributed these funds by and large towards the living expenses of both parties. It would appear that between late 1989 and April 1992, from her verdict monies if one discounts her share of the purchase price of Scarborough less the purchases that the defendant agrees she made less the repayments to social security she had a fund of approximately $5,165.00. That works out at a monthly contribution of $172.00 towards their living expenses and household expenditure or $43.00 per week. It would seem to me that that sort of expenditure on incidental day to day items is something the parties generally would not be conscious of. In my view the inference can be drawn that the balance of the monies went to general household and living expenses over that period of time.

21 During the period 1987 until 1994 the evidence is that the defendant’s income was $117,674.00 (Ex B and Ex 4). There is an issue about the nature of contributions, if any, that the plaintiff made towards the maintenance and improvement to the Clifton property. The plaintiff’s evidence I have already summarised, the defendant denies that she made any contribution at all to the Clifton property. In cross examination his evidence was that the work done on the Clifton property was work that by and large was carried out by him. There were times when both his father and brother assisted with the renovations. The occasions when the plaintiff attended was often for the purpose of bringing him lunch however, those occasions were not regular. He denied that she cleaned the Clifton Street property. He evidence was that the property did not need cleaning because it was completely refurbished. However, he did admit that on some occasions when she was there she would hand him tools and nails. The defendant’s evidence is that most of the major renovations were done to the property between 1981 and 1987. Those renovations were paid for by him. He accepted that some gardening was done by the plaintiff. The defendant’s evidence is that all materials for renovation and maintenance of the property were in fact paid for by him. During this period, the plaintiff’s personal injury claim was proceeding on the basis that as part of the damages she sustained was chronic neck pain and back pain. Her evidence is that she could not work during this period and was unable to perform tasks which involved heavy lifting. It seems to me on balance that the defendant’s evidence is to be preferred to the plaintiff’s evidence in relation to renovations carried out at the Clifton property. Any renovation which were carried out during the period of the relationship, it would seem to me, were primarily carried out by the defendant with from time to time assistance by his father and brother. Any assistance rendered by the plaintiff appears to have been of a minor nature.

22 In cross examination the defendant admitted that their incomes during this period were pooled, and that some of the monies from her damages claim formed a part of that pool. Throughout this period the defendant was in fulltime employment. It would appear that during this period that much of the household duties were shared by the parties. The plaintiff assets that she did most of the cooking, and by and large the defendant accepts that although his evidence is that he often assisted her in the preparation of the food.

23 In 1993 the defendant registered the business of Bazza’s Home Improvements. His evidence is that the business did not begin to trade until October 1994. Prior to the business commencing, the defendant was employed by a company to install aluminium garages. In October 1994 he used the trading name to work as a subcontractor to his former employer. The plaintiff's evidence is that she submitted building plans to the local council for the defendant’s jobs, organised advertising, arranged for the payment of bills associated with the business, and arranged for the printing of T-shirts. Her evidence is that she also liased with the clients and the suppliers of building materials. The defendant denies that the plaintiff gave anything but minimal assistance in the business. He conceded that on one or two occasions she may have delivered plans to the local council or done some banking on behalf of the business. In relation to paying accounts and maintaining the financial records, his evidence was that her bookkeeping skills were such that after she had performed those tasks the work had to be redone. He therefore, took over the bookkeeping aspect of the business. He conceded that the plaintiff answered some telephone calls, but his evidence is that a telephone extension and answering service was placed in the shed and thereafter most of the calls were either received or returned by him after clearing the answering service. In relation to the establishment of the business, I accept the evidence of the defendant over that of the plaintiff.

1995

24 In 29 May 1995 their son Zac was born. Ten weeks after the plaintiff had a second motor vehicle accident. As a result of the motor vehicle accident the plaintiff was not able to work and therefore received social security. This money was put towards the household expenses. The defendant’s evidence is that after the birth of Zac she was unwell and she received treatment in respect of the injuries sustained in the car accident for approximately two years after the accident on a daily basis. At about this time the defendant stopped working. His evidence, which was not contradicted by the plaintiff, was that he gave up work for a 12 month period to assist the plaintiff with the upbringing of Zac. It would appear that a major consideration of giving up work for 12 months was the disabilities and medical condition that the plaintiff had sustained. The plaintiff’s evidence is that she tried to do as much as she could around the house, and although in pain she continued to care for Zac and do household chores. The defendant’s evidence is that both he and the plaintiff during this period equally cared for the child. Although his evidence is that he was the primary household carer. It would seem that during the 12 months after the birth of Zac both parties contributed the social security payments they received to the welfare of the household and each contributed to the upbringing of Zac and the performance of household duties. There may have been a greater role played by the defendant however, in my view, the evidence does not support a contention that the role was significantly greater than that played by the plaintiff. For the financial year ended 30 June 1996 the income received by each of the parties was similar. The plaintiff received $5,807.00 and the defendant received $5,060.00.

For the period 1996 to 2001

25 During this period renovations were carried out on the Scarborough property and their second child Abbie was born on 12 April 1997. There are no tax returns furnished by the plaintiff although she does give a history of occasional work during this period.

26 Her evidence is that she has worked on a casual basis doing the occasional calligraphy job.

27 Her income therefore is shown as “nil” during this period. However, the plaintiff’s evidence was that whilst she undertook this part-time work the total income she earned was $415.00. During this period the defendant’s income was $77,000.00.

28 The plaintiff’s evidence is that the defendant did not care for the children other than to assist her of an evening, and occasionally take them to the beach. The defendant admits that the plaintiff continued to care for the children and the household during this period, but that her role was not as significant as she attempted to make out. The defendant’s evidence is that their contribution towards the children was equal during this period. More often than not he bathed the children and put them to bed, and shared duties with the plaintiff in respect of the childrens’ medical appointment, birthday parties and taking them to day care and school. The defendant conceded that towards the end of the year 2000 he was spending time away from the house including weekends. The reason for this being the terminal illness of his father. The defendant’s evidence is that he stayed with his father at the family home at Alburn during the last week of his father’s life. Other than that week and weekends between June and September 2000 he was at all times at home and in a position to share in the caring of the children and performance of domestic duties. During this period renovations were carried out in respect of the kitchen and the main bedroom. The plaintiff’s evidence is that she assisted with both these tasks. However, she was limited in the amount of work she could do because of the injuries sustained in the second motor vehicle accident. From the cross examination the impression I have is that much of the work that she attributes to herself in her affidavit was work that was performed by others, although I accept that she did some work in respect of the renovations. That work however, was not significant.

29 As a result of the second motor vehicle accident the plaintiff received an amount of $40,362.60. Her evidence was that part of the monies was used to pay-off the defendant’s bankcard debt of $1,000.00, $6,600.00 went towards the kitchen at the Scarborough property, $4,500.00 was used to purchase a Mazda motor vehicle, and $500.00 was paid for public liability insurance for the defendant’s business. The rest of the money was spent on expenses incurred by the family in the period between 1998 and 2001.

30 The defendant denies that the plaintiff made any contribution in the nature that she described. His evidence was that she used her monies for her own purpose. He denied that she paid the bankcard debt or public liability insurance. So far as the motor vehicle is concerned, his evidence is that he contributed $2,000.00 towards its purchase price. Much emphasis was placed on the fact that by 1992 all her funds had been exhausted. The plaintiff was cross examined on this point and she appeared to be equivocal in her responses. However, in my view that does not diminish the evidence given by the plaintiff. In most relationships the parties do not keep account of how every single dollar is spent. This couple was no different. In my view the constant cross examination of the plaintiff in trying to get her to justify where the monies from the second verdict went was inappropriate. In my view the plaintiff was genuine in her attempts to answer the questions, and her response often was that the money was spent on the family. The plaintiff was not really challenged in respect of these monies, there was no evidence put on that she is a spendthrift, that she spent the money on herself, that she gave the money away, that she gambled it. It seems to me that by and large the money was probably used as household expenses during the course of those three years. The defendant gave evidence that from time to time each would do shopping without the other. That to me seems to fall into a normal pattern of a couple, whilst they may shop together the majority of time, there would many occasions when both individually buy small items from the local shop or supermarket. To expect people to remember and to be able to account for every single item in my view is oppressive.

31 Evidence was given concerning the plaintiff’s heroine addiction. The plaintiff readily admitted that during the last three months of the relationship she became addicted to heroine. In the week of the separation she was in fact attending a detoxification program. Her evidence was that she was spending approximately $140.00 per week for a supply of heroine. Her addiction was funded by the use of her bankcard. She also admitted to being a long term user of marijuana and alcohol. In relation to the alcohol, the impression I got from the evidence was that she drank no more no less than most people and that it was not a problem or in anyway impacted on the welfare of the family. In relation to the marijuana no further evidence was given and it would be mere speculation to attempt to quantify the amount of money that would have been spent of this habit. It would seem to me that as it was not pursued by the defendant it was not a matter of significance in the defendant’s mind. Accepting the plaintiff’s evidence that she used heroine for a period of three months and paid approximately $140.00 per week the debt that she incurred in feeding the habit was approximately $1,700.00. In the absence of any other evidence it is to that extent that I find that the plaintiff retained some of her monies for her own use.

32 The plaintiff's evidence was that out of the settlement monies of the second motor vehicle accident she paid $6,600.00 for the installation of a new kitchen. The defendant denied this and maintained that the monies obtained for the new kitchen were provided by his father. There was evidence that throughout the relationship the defendant’s father made financial contributions on behalf of his son to the relationship. The evidence is that the father gave the defendant a cheque book which the defendant could use to pay bills. It seems that there was no restriction on using the cheque account and there are cheque butts which relate to Bazza’s Home Improvements and well as the household. The plaintiff admitted that at certain time when they had very little money the financial support provided by the defendant’s father saw them over difficult periods. Produced and marked Ex 5 is a cheque butt from the cheque book which establishes an amount of $5,000.00 was paid from the defendant’s father’s cheque book for the stove. There are other items in the cheque book which show cheques being draw for cash, payment of gas and electricity bills, purchase of the kitchen bench, and purchase of material for the shed. The plaintiff acknowledged that the defendant’s father contributed approximately $40,000.00 during the relationship. I therefore do not accept the plaintiff’s assertion that she made for the installation of the new kitchen.

33 In respect of caring for the children, the plaintiff’s evidence was that the defendant was at work and therefore had limited opportunity to look after the children and provide assistance for the plaintiff. The defendant’s evidence was that whilst he worked a normal working day Monday to Friday, he was always available for the weekends except for the period close to his father’s death, and he generally left for work between eight and nine o’clock in the morning and was home between three and four in the afternoon. His evidence is that he was able either drop off or pick up the children from either day care or school. Once again it seems to me that much of this work was almost evenly divided between the parties. The defendant accepted that the plaintiff was a good cook and that she prepared most of the meals, which seems to me having regard to the fact that by 1999 there were four members of the family, that a significant contribution to the relationship was the provision of meals. In my view the inference to be drawn is that the plaintiff played a more significant role in that aspect of the relationship than the defendant. Whilst I accept that because of the injuries that the plaintiff had sustained she was able to do only a limited amount of heavy work, I accept her evidence that she performed a number of the household chores. This however does not diminish the contribution made by the defendant. It seems to me that the defendant also made significant contributions to the non-financial aspect of the relationship.

34 The plaintiff was unable to give specific evidence in relation to matters contained in her affidavit in respect of the items that were purchased for renovations. However, it seems to me that an inference can be drawn that some of her monies were probably used to purchase materials and items used in the renovations. The average income of the family from 1 July 1997 until the separation in January 2001 was $17,112.00. Accepting the defendant’s evidence if one then assumes that the only identifiable money expended by the plaintiff out of the verdict monies of approximately $40,000.00 was $2,500.00 towards the Mazda and approximately $1,700.00 for the purchase of heroine that leaves the plaintiff with approximately $36,000.00 from the verdict monies. The proceedings were settled in 1998 thus the plaintiff had access to these funds over a period of three years. Having regard to the average annual income of the defendant in my view it is probable that the funds from the plaintiff were expended during the course of the relationship. There has already been admission that income was pooled. The defendant has admitted that some of the settlement monies were used on household expenses however, like the plaintiff he is unable to give a figure or a percentage of the contributions. Having regard to the nature of the relationship one would not expect the parties to have ledgers which showed the income and expenditure. On the evidence of the parties their funds were pooled. I see no reason why I should not accept that the settlement moneys received by the plaintiff into the third period of the relationship were contributed to the relationship when there was a greater need for funds as their family had grown to four and renovations were being carried out in respect of the Scarborough property. From the parties personal sources there income over the period 1 July 1997 until January 2001 was approximately $103,000.00. It has been readily conceded that the assistance of approximately $40,000.00 by the defendant’s father was of great assistance to parties and in my view it is completely plausible that the vast majority of the plaintiff’s settlement monies were expended in the relationship. It is not surprising that by 2001 she had completely exhausted her funds.

Summary

35 The defendant seeks an order that he pay to the plaintiff the $50,000.00 and that she transfer her interest in the property. This represents approximately the plaintiff’s 3/25 of her interest in the property. It fails to take into account any other financial or non-financial contributions made by the plaintiff.

36 The plaintiff seeks an order transferring the defendant's interest in the property to her upon payment by her to the defendant of an amount of $200,000.00. Similarly, this does not reflect the defendant’s contributed to the relationship.

37 The starting point is the interest the parties have in the property. I am of the opinion that the evidence establishes that the defendant has made significantly greater financial contributions to the relationship. He has contributed to the relationship the following:

(1) The Clifton property.

(2) Income over 13 years of the relationship.

(3) Provided the significant proportion of the funds to purchase Scarborough.

(4) Performed the major renovations to Scarborough, either by himself or with the assistance of his father and brother.

(5) Introduced additional funds through the assistance of his father.

(6) Made significant contributions as a homemaker and carer.

38 The plaintiff has contributed the following to the relationship.

(1) The proceeds of her damages claims.

(2) Some assistance with renovations.

(3) From 1995 played a significant role as a parent and homemaker.

39 Prior to 1995 the non-financial contributions were such that it would not be appropriate to make any adjustment pursuant to s 20. The plaintiff’s interests in the Scarborough property reflects the plaintiff’s financial contributions to that point in time. Non-financial contributions are not significantly weighted in favour of one party or the other. The imbalance in their income reflects a greater contribution by the defendant. In the post 1995 period their non-financial contributions in my view should be considered in the context of the significant change in the role of the plaintiff. During this period she gave birth to their two children. With the exception of 1995 I am of the opinion that she made substantial contributions as a parent and homemaker. I guided by cases such as in Re Marriage of Rolfe (1978) 26 ALR 219 and Mallet and Mallet (1984) 156 CLR 605.

40 Although her income was minimal during this period she contributed a substantial proportion of her second damages settlement money to the relationship. In my view the section requires me to give some weight to this contribution. Her contribution should not be debased simply because the defendant earned more than the plaintiff. This disparity in income should make no difference as the Act does not seek to entrench the systemic inequality in income between man and woman - see Gazzard v Winders (1998) 23 FamLR 716. It seems to me that in a appling the above one can take into account not only the difference in the ability to earn an income because one party may not be in a position to earn an income or one party may have skills which are more readily sought after by the community, but it also requires a consideration of the totality of the resources that that person brought to the relationship.

41 Therefore, the settlement money is in my view a substantial contribution by the plaintiff. It is contended by the plaintiff that she should receive 50% interest in the property. However, when one weighs up the overall contribution of the parties the conclusion one must come to is that there is no grounds for making such an adjustment.

42 The defendant submitted that I should include as a factor in determining whether any adjustment should be made the position of the parties post separation. It was contended that the plaintiff has resided in the property for 18 months rent free and has not had the responsibility of caring for the children. The defendant relies on comments made by Rourke J in Fuller v Taaffe 23 FamLR 702 at 712. However, in Flett v Brough (NSWSC, unreported, McLaughlin M, 20 November 1998) the learned Master adopted a different approach, one which is in line with the decision such as Wallace v Stanford (1995) 37 NSWLR 1 and Evans v Marmont (1997) 42 NSWLR 70.

43 Therefore, in my opinion there should be an adjustment in favour of the plaintiff. I note that the plaintiff has an interest in the Scarborough property to the extent of 3/25 of its value. Additionally, there should be an adjustment in favour of the plaintiff in the sum of $86,000.00.

44 The court orders that:

(1) The defendant pay to the plaintiff the sum of $86,000.00 pursuant to s 20 of the Property (Relationships) Act .

The court notes that:

(2) In respect of the property known as 344 Lawrence Hargrave Drive, Scarborough the parties have the following interest:

(i) the plaintiff 3/25;
(ii) the defendant 22/25.


The court declares that:

(3) Each party is the sole owner of property in their respective possession or in which they possess legal title.

The court further orders that:

(4) The statement of claim be otherwise dismissed.

(5) The cross claim be dismissed.

(6) The defendant pay the plaintiff’s costs.
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Last Modified: 10/08/2002