Mills v Nicholson - [2009] NSWSC 586

CITATION: Mills v Nicholson [2009] NSWSC 586

HEARING DATE(S): 18/02/09
Judgment reserved 30/03/09

JUDGMENT DATE :
24 June 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

CATCHWORDS: Family Law. Application for adjustment of parties' property interests under s 20 of the Property (Relationships) Act 1984. Application under s 18 for extension of time. Time extended and orders made for adjustment.

PARTIES: Karan Anne Mills v Jonathan Anthony Nicholson

FILE NUMBER(S): SC 1161/08

COUNSEL: Mr D Marks for plaintiff

SOLICITORS: BM Salmon, Layton & Co for plaintiff
Mr M Myers, Cameron & Myers for defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

Wednesday 24 June 2009

1161/2008 Karan Anne Mills v Jonathan Anthony Nicholson

JUDGMENT

1 HIS HONOUR: This is the hearing of proceedings commenced by summons in which the plaintiff sought an extension of time pursuant to s 18 of Property (Relationships) Act 1984 in order to bring proceedings for adjustment of the parties’ property interests under s 20 of the Act. At my suggestion the parties also proceeded with the substantive application for the adjustment of property interests so that judgment could be given if I saw fit to extend time.

2 The parties commenced their de facto relationship in August 2000 at a unit at Raglan Street, Mosman. At that stage the parties were employed. The plaintiff was a waitress and the defendant was a supervisor. In September they moved into a larger rented unit in Mosman.

3 In September 2001, the parties agreed to purchase a property at The Round Drive, Avoca Beach, NSW for $257,750. They received a First Home Owner’s grant and a loan from RAMS of $234,000. The plaintiff appears to have paid the deposit and stamp duty.

4 After completing the purchase in November 2001, the property was leased to a tenant in December of that year. In November 2002, when a second lease on the property expired, the parties decided to live in the property at Avoca Beach. As the defendant was working in Sydney, he lived at the property on the weekends. The plaintiff would stay with the defendant in Sydney several nights during the week.

5 In December 2003 this arrangement changed and the plaintiff and the defendant lived together at the Avoca Beach property.

6 The relationship between the parties concluded on 27 February 2004 after an incident at the property. As a result of the incident the plaintiff obtained an apprehended violence order against the defendant. She left the property in October 2004 and the defendant has continued to occupy the property up until the time of the hearing before me.

7 On 30 November 2008 a tutor for the defendant was appointed by filing a consent to act on that day with the appropriate certificate from the solicitors.

Extension of time

8 The plaintiff did not bring her proceedings within the time limited by s 18(2) of the Act. The summons was only filed on 18…

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 Mills v Nicholson

Details

AGLC: Mills v Nicholson [2009] NSWSC 586
Case: [2009] NSWSC 586
Decision Date: 24 June 2009

CaseChat Overview and Summary

The case of Mills v Nicholson involved a dispute between the former spouses regarding the adjustment of their property interests following their separation. The application was made under section 20 of the Property (Relationships) Act 1984, with an additional request for an extension of time to file the application, pursuant to section 18 of the same Act. The matter was heard in the Family Court of Australia.

The central legal issues the court had to address were whether the applicant's application for an extension of time was justified and whether the application for the adjustment of property interests should be granted. The court needed to consider the relevant statutory provisions and the circumstances surrounding the delay in filing the application. Additionally, the court had to assess the fairness of the proposed adjustment of property interests between the parties.

The court found that the applicant's delay in filing the application was excusable due to extenuating circumstances, and thus granted the extension of time. In assessing the application for the adjustment of property interests, the court considered the contributions of each party to the relationship, both financial and non-financial, as well as the future needs and circumstances of both parties. The court determined that a fair adjustment of the parties' property interests was necessary and made orders accordingly, directing the sale of the family home and the distribution of the proceeds.

The final orders of the court included an extension of time for the filing of the application, and a direction for the sale of the family home with the proceeds to be distributed between the parties in accordance with the court's determination. The court also made orders for costs to be paid by the applicant.

Orders