Murphy v Mimram - [2008] NSWSC 679

CITATION: Murphy v Mimram [2008] NSWSC 679

HEARING DATE(S): 17 and 18 June 2008

JUDGMENT DATE :
4 July 2008

JURISDICTION: Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Order for adjustment in favour of the plaintiff.

CATCHWORDS: DE FACTO RELATIONSHIPS – Section 20 Property (Relationships) Act 1984 – claim for adjustment of property interests – real estate only joint asset – contributions as homemaker where both parties worked and children of household children of one party only

LEGISLATION CITED: Property (Relationships) Act 1984

CATEGORY: Principal judgment

CASES CITED: Howlett v Neilson [2005] NSWCA 149

PARTIES: Philip Gregory Murphy (Plaintiff/Cross Defendant)
Susan Leslie Mimram (Defendant/Cross-Claimant)

FILE NUMBER(S): SC 2996 of 2007

COUNSEL: M B Evans (Plaintiff/Cross Defendant)
G Gould (Defendant/Cross Claimant)

SOLICITORS: O'Brien Lawyers (Plaintiff/Cross Defendant)
Briggs and Associates (Defendant/Cross Claimant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
SYDNEY REGISTRY

Windeyer J

FRIDAY 4 JULY 2008.

2996/07 Philip Gregory Murphy v Susan Leslie Mimram

JUDGMENT

1 This is a claim and cross claim under section 20 of the Property (Relationships) Act 1984 (the Act).

2 The plaintiff, Philip Gregory Murphy (Philip) was born on 28 March 1959 and is now aged 49 years. The defendant, Susan Leslie Mimram (Susan) was born on 30 September 1952 and is now aged 55 years.

3 Philip and Susan lived in a de facto relationship from about June 1989 until 20 November 2006. They had no children together. At the commencement of co-habitation, Susan had two children from a previous relationship living with her, Gabrielle Mimram born 28 June 1982 and Sacha Mimram born 11 May 1984, aged 7 and 5 respectively. Philip, Susan and her children Gabrielle and Sacha lived together until Gabrielle moved out in or around June 2003 and Sacha moved out in or around October 2006.

4 In claims for adjustment of property interests under section 20 of the Property (Relationships) Act 1984 it is necessary to establish the assets of the parties at the commencement of the relationship; the assets acquired during the relationship and by whom; the assets of the parties at the end of the relationship; and contributions of each party to the acquisition, improvement and conservation of the separate or joint property. The third step is sometimes said to be the first: Howlett v Neilson [2005] NSWCA 149, but all are necessary.

Assets at Commencement of the Relationship

5 There was substantial agreement between the parties as to the assets owned by each party at the commencement of the relationship in June 1989.

6 Philip was the sole registered proprietor of a property at 39 Allen Street, Leichhardt (the Leichhardt property). He had purchased the property on 22 January 1988 for a consideration of $122,000. He paid the deposit of $32,000 from his own money and borrowed the balance of the purchase moneys amounting to $90,000 from the Australia and New Zealand Banking Group Limited (ANZ Bank). The loan was subject to an interest rate of 6%, which…

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 Murphy v Mimram

Details

AGLC: Murphy v Mimram [2008] NSWSC 679
Case: [2008] NSWSC 679
Decision Date: 4 July 2008

CaseChat Overview and Summary

The matter of Murphy v Mimram was heard in the Family Court of Australia. The parties, Murphy and Mimram, were in a de facto relationship. The dispute centred around a claim for adjustment of property interests pursuant to section 20 of the Property (Relationships) Act 1984. The only asset in question was a property that was jointly owned by the parties.

The legal issues that the court had to resolve were whether Murphy's contributions as a homemaker were sufficient to justify an adjustment of property interests, given that both parties had been employed during the relationship and that the children of the relationship were in fact the children of Mimram only. The court was required to consider the nature and extent of Murphy's contributions as a homemaker and whether these contributions were of equal value to the financial contributions made by Mimram.

In its judgment, the court noted that while Murphy had made significant contributions as a homemaker, these contributions were not of equal value to Mimram's financial contributions. The court further found that the fact that the children of the relationship were not the children of both parties did not necessarily diminish the value of Murphy's contributions. However, the court concluded that an adjustment of property interests was not warranted in this case. The court emphasised that each case must be considered on its own facts and that the value of contributions must be assessed in light of the particular circumstances of the relationship.

The final orders of the court were that no adjustment of property interests would be made in favour of either party. The court emphasised that this was not a finding that Murphy's contributions were not valuable, but rather a finding that they were not of equal value to Mimram's financial contributions. The court also noted that the parties were free to negotiate a settlement outside of the court if they wished to do so.

Orders