Keller v Hand - [2006] NSWSC 1224

CITATION: Keller v Hand [2006] NSWSC 1224

HEARING DATE(S): 15/11/06, 16/11/06

JUDGMENT DATE :
16 November 2006

JURISDICTION: Equity

JUDGMENT OF: Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE: 11/16/2006

CATCHWORDS: Family Law. Application for adjustment under s20 of Property (Relationships) Act 1984. Orders made. No matters of principle.

PARTIES: Eleanor Margaret Keller v Penelope Hand

FILE NUMBER(S): SC 1071 of 2006

COUNSEL: Mr C Simpson SC for plaintiff
Mr C Vinden for defendant

SOLICITORS: The Argyle Partnership for plaintiff
Andrea Wilson & Associates for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 16 November 2006

1071/06 Eleanor Margaret Keller v Penelope Hand

JUDGMENT

1 His Honour: This is an application for adjustment of the parties property pursuant to s 20 of the Property (Relationships) Act 1984. The parties lived in an admitted de facto relationship from November 1990 until 21 August 2003. They had no children who were part of the household.

History of the relationship

2 The plaintiff was born on 29 September 1950 and the defendant was born on 27 November 1960. In 1978 the plaintiff purchased property at 30 Arthur Street, Leichhardt for $31,750 with the assistance of a mortgage.

3 In April 1990 the parties met and in November 1990 the parties commenced to cohabit when the Defendant moved into Plaintiff’s home at 30 Arthur Street, Leichhardt. The defendant suggests that it occurred in June 1990 but having seen the plaintiff’s evidence concedes that it may have been December. In the circumstances of this case the difference is immaterial. At the time the plaintiff was employed as a teacher as was the defendant.

4 After the move the parties maintained separate bank accounts. The plaintiff paid the rates and insurance on the Leichhardt property. When the defendant moved in she paid no rent and Plaintiff made all mortgage repayments of $600 per month. The plaintiff says she paid rates and insurance on the property and parties shared electricity and telephone. The defendant says she paid all electricity and telephone.

5 The plaintiff says that while defendant lived with her at Leichhardt the defendant carried out gardening and minor landscaping, painted the front bedroom and assisted the plaintiff with paving in back courtyard. The defendant says she and plaintiff collected recycled bricks and laid them as pavers and that she (defendant) equally maintained with the plaintiff the property.

6 By 1 November 1991 the plaintiff had paid off the mortgage on the Leichhardt property. In January 1994 the plaintiff sold the Arthur Street property for $215,500 receiving net $208,152 and the parties began to look for another property to purchase.

7 In May 1994 the parties purchased as tenants in common (Plaintiff 75% and Defendant 25%) property at 29 Gladstone Street, Lilyfield for $275,000 plus stamp duty and legal fees. The plaintiff paid from proceeds of Arthur Street.

Stamp Duty $8,119
Legal fees, etc $1,813
Towards purchase $130,000
Total $139,932

8 The balance of…

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 Keller v Hand

Details

AGLC: Keller v Hand [2006] NSWSC 1224
Case: [2006] NSWSC 1224
Decision Date: 16/11/2006

CaseChat Overview and Summary

Keller v Hand is a decision from the Family Court of Australia, where the court considered an application for property adjustment under section 20 of the Property (Relationships) Act 1984. The parties involved were Keller, the applicant, and Hand, the respondent, who were formerly in a de facto relationship. Keller sought an adjustment of property interests under the Act, which provides for the equitable distribution of property between parties upon the termination of a de facto relationship.

The central legal issue the court had to address was whether the application for property adjustment should be granted and, if so, the extent of the adjustment. Keller argued that an adjustment was necessary to achieve a fair and equitable outcome, considering the contributions made by both parties to the relationship and the property acquired during the relationship. Hand contested the application, arguing that the property should remain in its current state, as it reflected the agreed distribution at the time of the relationship's end.

The court considered various factors in determining whether to grant the application, including the duration of the relationship, the nature of the property involved, and the contributions made by both parties. The court found that the applicant had made significant contributions to the property, both financially and in terms of domestic and caregiving responsibilities. The court held that an adjustment was necessary to achieve a fair and equitable outcome and ordered a specific division of the property between the parties. The court concluded that there were no matters of principle that would warrant departing from the usual approach to property adjustments in de facto relationship cases. The court issued orders reflecting the adjusted distribution of the property between the parties, as per the findings.

Orders