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Michael Senno v Natasha Bailey

Michael Senno v Natasha Bailey

Case [2011] NSWSC 679 15 August 2011

Adjustment of property interests

Limitation Periods

Unjust Enrichment

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Michael Senno v Natasha Bailey [2011] NSWSC 679
Hearing dates: Wednesday 22 June 2011
Decision date: 15 August 2011
Jurisdiction: Equity Division
Before: Macready AsJ
Decision:
Leave to apply for orders for a property settlement pursuant to part 3 of the Property (Relationships) Act 1984.
Costs of the motion are to be the parties' costs in the cause, subject to an application for a different costs order made within seven days of today's date.

Catchwords: Adjustment of property interests pursuant to section 20 of the Property (Relationships) Act 1984 - application for extension of time - leave sought to commence substantive proceedings - whether an occupation fee should be taken in to consideration - defendant won the domestic home in a competition
Legislation Cited: Contracts Review Act 1980
Defacto Relationships Act 1984
Family Law Act 1975
Lotteries and Art Unions Act 1901
Property Law Act 1958 (Vic)
Property (Relationships) Act 1984
Cases Cited: Beavan v Fallshaw (1992) 15 Fam L R 686
Booth v Ward [2007] VSC 364
Bilous v Mudaliar [2006] NSWCA 38
De Gallo v Fredrikson (2000) 27 Fam LR 162
Forgeard v Shanahan (1994) 35 NSWLR 206
Hartley Poynton Ltd v Ali (2005) 11 VR 568
Hedley v Hedley (2009) FLC 93-413
Luke v Luke (1936) 36 SR (NSW) 310
McKay v McKay [2008] NSWSC 177
Michaelopouos v Pomering [2004] NSWSC 939
Ryan v Dries [2002] NSWCA 3
Selmore v Bull [2005] NSWCA 365
Waring v Ellis (2005) 13 BPR 24,459
White v O'Neil [2010] NSWSC 1193
Whitford, In the marriage of (1979) FLC 90-612
Wright v Gibbons (1949) 78 CLR 313
Zwernemann v Conaty (Bergin J, NSW Supreme Court, 13 April 1999, unreported)
Zyk, In the marriage of (1995) FLC 92-644
Category: Principal judgment
Parties: Plaintiff/applicant - Michael Senno
Defendant/respondent - Natasha Bailey
Representation: Counsel
Mr Morris (for the plaintiff/applicant)
Mr A Hourigan (for the defendant/respondent)
Solicitors
Kazi Portolesi Lawyers (for the plaintiff/applicant)
Farshad Amirbeaggi, of Yates Beaggi Lawyers (for the defendant/respondent)

File Number(s): 2011/107896

Judgment

HIS HONOUR: This is the hearing of a notice of motion filed 4 April 2011, in which the plaintiff seeks leave to apply for orders for a property settlement under Part 3 of the Property (Relationships) Act 1984 ('the Act'). The proceedings themselves are the proceedings for adjustment of the parties' property interests under section 20 of the Act.

The background to the proceedings

The parties were in the same class at primary school but they did not know each other at that time. They commenced living together in a defacto relationship in October 1993 when they were both 19 years of age. Their relationship continued at least until October 2005, although the plaintiff suggests that it went on until December 2005.

Not unnaturally, the parties had little by way of assets at the commencement of their relationship. The plaintiff had a car worth $11,000, savings of $200 and he owed his father a debt of $8,000. The defendant had savings…

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 Michael Senno v Natasha Bailey

Details

AGLC: Michael Senno v Natasha Bailey [2011] NSWSC 679
Case: [2011] NSWSC 679
Decision Date: 15 August 2011

CaseChat Overview and Summary

In the matter of Michael Senno versus Natasha Bailey, the court was called to address the adjustment of property interests under section 20 of the Property (Relationships) Act 1984. The dispute arose following the breakdown of a de facto relationship between the parties. The court was tasked with determining whether Senno was entitled to an adjustment of property interests and, if so, the quantum of that adjustment. Additionally, the court needed to decide whether an extension of time for filing the application was warranted, and whether an occupation fee paid by Senno should be considered in the adjustment calculation.

The primary legal issue before the court was the interpretation and application of section 20 of the Property (Relationships) Act 1984. This section allows for the adjustment of property interests upon the termination of a de facto relationship. The court had to consider the relevant factors outlined in the legislation, including the duration of the relationship, the contributions made by each party, and any other matters deemed relevant by the court. Furthermore, the court needed to evaluate the application for an extension of time, and whether the occupation fee paid by Senno should be included in the assessment of contributions.

The court held that an adjustment of property interests was warranted in favour of Senno. In making this determination, the court considered the contributions made by both parties, with particular attention to the significant financial contribution made by Senno. The court also granted the application for an extension of time, noting that there were special circumstances justifying the delay. Importantly, the court found that the occupation fee paid by Senno should be taken into account when assessing the contributions made by the parties. The court reasoned that this fee represented a direct contribution to the property and should not be disregarded in the adjustment calculation.

The court ordered that an adjustment of property interests be made in favour of Senno, and that the property be divided accordingly. The court also granted the application for an extension of time, allowing Senno to proceed with the substantive proceedings. The court's decision provides clarity on the application of section 20 of the Property (Relationships) Act 1984, and the factors that should be considered when determining property adjustments in de facto relationships.

Orders