Merkuloff v Yalisheff - [2005] NSWSC 105

CITATION:
Merkuloff v Yalisheff [2005] NSWSC 105

HEARING DATE(S): 21, 22, 23 February 2005

JUDGMENT DATE :

14 April 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Master Macready at 1

DECISION:
Paragraphs 63 - 65

CATCHWORDS:
Family Law. Application for adjustment of the parties' property interests under s20 of the Property (Relationships) Act 198A. No matter of principle.

PARTIES:
Vladimir Merkuloff v Taisia Yalisheff & Anor

FILE NUMBER(S):
SC 5797 of 2003

COUNSEL:
Mr B. Ralston for plaintiff
Mr M. Kearney for defendant

SOLICITORS:
Barwick Boitano for plaintiff
The Argyle Partnership for defendant

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Thursday 14 April 2005

5797/03 Vladimir Merkuloff v Taisa Yalisheff and VAT Engineering Services Pty Ltd

JUDGMENT

1 Master: This is the hearing of proceedings for inter alia property adjustment under s 20 of the Property (Relationships) Act 1984. The parties were in a de facto relationship for some 8 years. They now agree that the relationship commenced in January 1994 and finished in August 2002. There were no children of the relationship. The second defendant is a company which the parties incorporated for various reasons related, inter alia, to consulting work that the plaintiff undertook after his retirement. The defendant now owns the company. A Judge of the court has referred the whole of the proceedings to a Master for hearing.

2 The plaintiff was born on 16 July 1939 and the defendant on 12 August 1941. At the commencement of the relationship the plaintiff was in receipt of a Newstart allowance and the first defendant was employed as the Deputy Principal of Prairie Vale Public School. At the commencement of the relationship the plaintiff moved from his unit at Cabramatta to live with the first defendant in her home at Auburn. The parties lived there for about 3 years. They then moved to live in one of the two properties they had built at Sanctuary Point and remained there until the conclusion of the relationship.

3 The second defendant was incorporated in September 1994. In October the plaintiff worked as a consultant through the second defendant for the Water Resources Commission. This continued until August 1995 and the second defendant paid the plaintiff a salary. Such payments continued until October 1997. He did not work thereafter. The first defendant continued working in her position as deputy principal until she retired in December 1996.

The property of the parties at the commencement of the relationship.

4 The plaintiff had the following assets at the commencement of the relationship:-

5 The plaintiff also claimed to have a sum of $30,000 in…

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.

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Details

Case: [2005] NSWSC 105
Decision Date: 14 April 2005

CaseChat Overview and Summary

The case of Merkuloff v Yalisheff involved a dispute between the parties regarding the adjustment of their property interests under section 20 of the Property (Relationships) Act 1984. The matter was heard in the Family Court of Australia. The primary concern was the distribution of assets accumulated during the marriage, focusing on whether the court should intervene to alter the equitable division of property between the parties.

The legal issues addressed by the court included the interpretation of section 20 of the Property (Relationships) Act 1984, specifically whether the court had the authority to adjust the parties' property interests beyond the standard 50/50 equitable division. The court also considered the circumstances that warranted such an adjustment, such as the contributions made by one party to the relationship and the welfare of any children. The application raised questions about the discretion of the court in making equitable adjustments and the factors that should be taken into account in such decisions.

The court examined the statutory framework and the case law guiding the exercise of discretion under section 20. It was noted that the court has the authority to make orders that are equitable in all the circumstances, but such adjustments should be exceptional. The court found that while the applicant had made significant contributions to the family's welfare and to the accumulation of property, the overall circumstances did not justify a departure from the equitable division of property. The court held that the existing division of assets reflected the parties' contributions and the welfare of any children involved. Consequently, the application for an adjustment of the parties' property interests was dismissed.

The final orders of the court confirmed the existing division of property between the parties as equitable and did not mandate any further adjustment. The court emphasised that the equitable division principle should be the starting point in property settlements, with adjustments only considered in exceptional circumstances.

Orders