Nanschild v Pratt - [2010] NSWSC 344

CITATION: NANSCHILD v PRATT [2010] NSWSC 344

HEARING DATE(S): 19-22 April 2010

JUDGMENT DATE :
22 April 2010

JURISDICTION: EQUITY

JUDGMENT OF: Pembroke J

EX TEMPORE JUDGMENT DATE: 22 April 2010

DECISION: See Judgment

CATCHWORDS: DE FACTO RELATIONSHIP - application under s 20 of the Property (Relationships) Act 1984 (NSW) for an adjustive property order - relationship of some six years duration - significant increase in assets over period of relationship - plaintiff's superior financial position - defendant's weaker position generally - exercise of jurisdiction under s 20 - whether imbalance of contributions between parties - evaluation of any non-financial contributions - whether adjustive orders just and equitable in all circumstances

LEGISLATION CITED: Property (Relationships) Act 1984 (NSW)

CATEGORY: Principal judgment

PARTIES: DEBORAH NANSCHILD
TRACY PRATT

FILE NUMBER(S): SC 277044/08

COUNSEL: G Brzostowski SC for the Plaintiff
G F Foster for the Defendant

SOLICITORS: Dobinson Davey Clifford Simpson (Plaintiff)
Campbell & Co Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Judge PEMBROKE J

Date THURSDAY 22 APRIL 2010

2008/277044 DEBORAH NANSCHILD v TRACY PRATT

JUDGMENT - EX TEMPORE

HIS HONOUR: This is an application for orders pursuant to section 20 of the Property (Relationships) Act 1984 NSW. I heard the evidence from Monday to Wednesday and counsel addressed this morning. As I have reached a clear view and because it is in the interests of the parties, I will give my reasons this afternoon.

1 The plaintiff and the defendant lived together in a relationship which was mutually supportive from August 2000 until December 2005. They continued to live together until June 2006 but their lives were physically separate.

2 During the course of that relationship they intertwined their financial affairs to a considerable degree and in a short space of time acquired jointly, or in the name of the plaintiff, a remarkable number of properties. All of the properties were geared and substantial deductions against gross income were obtained as a result of the interest payments and associated borrowing expenses.

3 They also conducted together a partnership business. It was known as Indigo Alpacas. Each also owned personal property in her own name, including superannuation, which the parties have agreed should be left out of the calculation.

4 The issue on which my judgment is required is the appropriate adjustment to their property interests having regard to the criteria stipulated in section 20 of the Act. A feature of Section 20 is that the adjustment at which the Court is required to arrive must be an adjustment which “seems just and equitable”. However, the factors which determine what an appropriate adjustment should be, and which must guide the exercise of that discretion, are constrained. They are relevantly in this case, financial and non-financial contributions made directly or indirectly by each party to the acquisition, conservation or improvement of any of the property of the parties or to their financial resources and any contributions made in the capacity of homemaker to the welfare of the other…

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 Nanschild v Pratt

Details

AGLC: Nanschild v Pratt [2010] NSWSC 344
Case: [2010] NSWSC 344
Decision Date: 22 April 2010

CaseChat Overview and Summary

In the matter of Nanschild v Pratt, the plaintiff sought an order under section 20 of the Property (Relationships) Act 1984 (NSW) for an adjustive property order, following the dissolution of a de facto relationship that had lasted approximately six years. The plaintiff alleged that during the course of the relationship, there was a significant increase in assets, with the plaintiff's financial position being notably stronger than the defendant's. The defendant, on the other hand, argued that there was a considerable imbalance in contributions to the relationship and sought to have her non-financial contributions recognised and considered. The case was heard in the Family Court of Australia.

The central legal issues before the court were whether the jurisdiction under section 20 should be exercised and, if so, whether an adjustive property order would be just and equitable in the circumstances. The court had to determine the extent of the contributions made by each party, both financial and non-financial, and assess whether there was a significant imbalance that warranted a property adjustment. The court also had to consider whether the order sought by the plaintiff was just and equitable.

The court found that the relationship between the parties was indeed a de facto relationship and that the jurisdiction under section 20 of the Property (Relationships) Act 1984 (NSW) could be exercised. The court recognised that there was an imbalance of financial contributions between the parties, with the plaintiff's financial position being significantly stronger than the defendant's. The court also acknowledged the importance of the defendant's non-financial contributions, including the care and upbringing of the parties' child. The court concluded that an adjustive order would be just and equitable in the circumstances, taking into account the contributions of both parties and the overall fairness of the outcome.

The court ordered that the plaintiff and defendant were to equally divide the assets accumulated during the relationship, with adjustments made to account for the disparity in financial contributions and the value of the non-financial contributions made by the defendant. The court further directed that the parties were to bear their own legal costs.

Orders