Proctor v Haemmerle

[2006] NSWDC 108

CITATION:	PROCTOR v HAEMMERLE [2006] NSWDC 108
HEARING DATE(S):	2, 3 and 7 November 2006
EX TEMPORE JUDGMENT DATE:	11/09/2006
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Declaration pursuant to ss 5, 17, 20, 44 and 47 of the Property (Relationships) Act 1984 that the deed dated 17 December 2002 between the parties does not preclude adjustment of their property interests; 2. Ms Haemmerle is to transfer her interest in the property at Whiskey Creek Road, Dorrigo to Mr Proctor within 28 days of the date of this judgment and in default thereof the Registrar of the District Court is empowered to execute all relevant documents to effect such transfer in her stead; 3. Upon completion of the transfer, Mr Proctor is to pay to Ms Haemmerle the sum of $40,000 by way of final property settlement; 4. Further, or in the alternative, the property is to be listed for sale forthwith with an agreed real estate agent for a price as determined by the real estate agent. The proceeds of sale are to be divided as follows; (1) Payment of all advertising and real estate and legal fees associated with the sale (2) The balance of the proceeds to be divided as to $40,000 to Ms Haemmerle and as to the balance to Mr Proctor; 5. The parties are declared to have the sole right and interest in (1) Any chattels, goods, furnishings, motor vehicles and other property with are, at the date hereof, in their possession respectively (2) Any monies or superannuation in their sole name respectively at the date hereof; 6. The parties are to do all acts and things and give all consents and execute all documents and writing necessary to give effect to the orders which I have made; 7. In the event that either party refuses to execute any deed or instrument, the Registrar of the Court is appointed pursuant to s 39 to execute such deed or instrument in the name of such party and to do all acts or things necessary to give validity to the operation of the deed or instrument; 8. Ms Haemmerle is to pay Mr Proctor’s costs of the proceedings. I decline to make an order in respect of indemnity costs; 9. Exhibits to be retained for 28 days; 10. I make no special orders in respect of the materials supplied under subpoenae as Ms Haemmerle has copies of the materials produced
CATCHWORDS:	Adjustment of property interests - Effect of non-certified deed
LEGISLATION CITED:	Property (Relationships) Act 1984 ss 5, 17, 20, 44 and 47
PARTIES:	Edward PROCTOR v Maria HAEMMERLE
FILE NUMBER(S):	Coffs Harbour 75/04
COUNSEL:	Plaintiff S Loomes Defendant self represented
SOLICITORS:	Plaintiff Carlo Bianchino, Lawyer Defendant self represented

JUDGMENT

1 This matter involves a claim between parties to a previous relationship, Mr Edward Proctor and Ms Maria Haemmerle. They met in 1999 when Mr Proctor was seventy years old and Ms Haemmerle was forty-seven.

2 In early 2002, they left the Central Coast region of New South Wales together, bound for Dorrigo. Their intention was to purchase a property on which they would construct a house in which they would both reside. A property was purchased at Whiskey Creek Road, Dorrigo, for the sum of $240,000.

3 As a temporary measure, pending the construction of the house, they lived in a rented flat in Dorrigo. The lease was taken in Mr Proctor’s name.

4 Mr Proctor provided all the funds for the purchase of the property. He also paid the expenses of the purchase, including stamp duty and legal fees. He paid the bond and the rent on the flat. The source of the funds for these expenses had been the proceeds of the sale of his home, and only significant asset, at North Entrance, before the parties left for Dorrigo.

5 The Whiskey Creek Road property was purchased in Ms Haemmerle’s name, with a view to securing the benefit of the First Home Owner’s Grant. This subsequently was not available to her.

6 In December 2002, title to the property was transferred into their joint names as joint tenants. The joint tenancy was subsequently severed and the parties now hold title as tenants in common in equal shares.

7 The parties separated in January 2003.

8 Mr Proctor has applied to the Court for an adjustment of the property interests of the parties pursuant to s 20 of the Property (Relationships) Act 1984. He asks for orders directing Ms Haemmerle to transfer her interest in the property to him and directing him to pay her the sum of $30,000.

9 Ms Haemmerle contends that the Court has no jurisdiction in respect of the property of the parties for the reason that there was no relationship between her and Mr Proctor of the type required by the Act. Further, it is argued by Ms Haemmerle that if the required relationship did exist, their property rights are to be determined in accordance with a deed signed by the parties on 17 December 2002.

10 The Act confers jurisdiction on the court in respect of two types of relationship. S 4 deals with a de facto relationship which is defined as one which exists between two adult persons who live together as a couple and who are not married to one another or related by family. S 4 sets out a number of criteria to which the court may have reference for the purpose of determining whether a de facto relationship exists. The section makes it clear that these criteria are set out for guidance only and that not all are required to be established before the court may make a finding of a de facto relationship.

11 The second type of relationship is referred to in s 5 of the Act is a close personal relationship defined as a relationship between two adult persons who live together, one or each of whom provides the other with domestic support and personal care. De facto and personal relationships are jointly referred to in the Act as domestic relationships.

12 S 17 of the Act requires that the parties live together in a domestic relationship for not less than two years. Mr Proctor and Ms Haemmerle lived in the same residence at Oak Street, Dorrigo, between April 2002 and January 2003, thus for a maximum of ten months only. An exception to the two year requirement is provided for where there are substantial contributions made by one party, for which that party would not otherwise be adequately compensated. I am satisfied in this case that if I find that a relationship of the kind provided for in the Act existed between the parties, it would be appropriate to apply this exception.

13 The issues to be determined in order to settle the claims as between the parties are as follows:

(1) which of Mr Proctor or Ms Haemmerle I should accept as to the nature of their relationship;

(2) whether the nature of the relationship was such that it was a de facto or a close personal relationship;

(3) the effect of the deed of 17 December 2002; and

(4) the adjustment of interests, if any, to be made.

Issue 1 - which of Mr Proctor and Ms Haemmerle I should accept

14 I note that the evidence comprised compendious affidavits of each party upon which they were cross-examined. In addition, I received affidavits of third parties as to their observations of the relationship between Mr Proctor and Ms Haemmerle. By agreement, the deponents to those affidavits were not cross-examined. Those filed in support of Mr Proctor’s claim were, as one might expect, supportive of his assertion that a de facto relationship existed. Those affidavits were based upon observations and reports of conversations.

15 For Ms Haemmerle, the affidavits of Mr Winsley Miller and Mr Wilson were of little assistance because they dealt with a period from about August 2003, after Ms Haemmerle took employment. I have already noted that the parties separated in January 2003. There are two witnesses whose evidence I have rejected entirely, for reasons later referred to. The other witnesses supported Ms Haemmerle’s evidence that she and Mr Proctor slept in separate rooms in the Dorrigo flat and that there was no de facto or personal relationship.

16 Mr Proctor contended that the nature of the relationship was such that it was a de facto or close personal relationship. Ms Haemmerle denied that there was anything between her and Mr Proctor other than a business relationship directed at the construction on the Whiskey Creek Road property of a dwelling which they would share and from which they would pursue their separate lives and interests. She stated that the move to Dorrigo was initiated by her as part of her own long held plan to live in the area in an environmentally sensitive fashion and with the ultimate intention of restoring the property on her death to the local Aboriginal community. Thus, according to Ms Haemmerle, she entered into a business with Mr Proctor in the nature of a joint venture in which they would each have only a life interest in the Whiskey Creek Road property.

17 Ms Haemmerle claimed that Mr Proctor was fully aware of her intentions and that they had reached an oral agreement to put them into effect when they moved to Dorrigo in early 2002. She stated that the deed signed by the parties and dated 17 December 2002 reflected the intentions that they had previously orally agreed upon.

18 Mr Proctor denied any such agreement. He stated that he in fact initiated the move to Dorrigo and invited Ms Haemmerle to go with him, following a period in which their relationship, after some sexual intimacy had ceased, had developed into a loving companionship. Mr Proctor said that their joint intention was to build a home that they would share as loving companions. Mr Proctor said the deed had been signed in circumstances of some duress after he had developed concerns because the property had been registered solely in Ms Haemmerle’s name.

19 I had great difficulty in accepting the evidence of Ms Haemmerle for the following reasons:

(1) As debated with her in the course of submissions, I find improbable the suggestion that the parties were in a business relationship. Ms Haemmerle made reference to a business, but she was unable to identify the nature of the business involved.

(2) The venture involved funding provided only by Mr Proctor. I would require very clear evidence indeed before I could accept that Mr Proctor had agreed to enter into a business relationship that required the investment of all of his assets in a venture of this nature.

(3) Ms Haemmerle had only limited assets and minimal income in the financial years preceding and during the term of the relationship. From a financial perspective, therefore, she could not possibly have put into effect the plan that she claimed to have initiated.

(4) There were a number of inconsistencies in her evidence. An example concerns the sexual elements of the relationship. In her initial affidavit of evidence she stated that sex had occurred only once between the parties. A subsequent affidavit referred to a number of sexual contacts. She continued at the hearing to deny any sexual element to the relationship.

(5) There was evidence of her witnesses, Mr Wheatley and Mr Torbet, that was directly contrary to that of Mr Aiken, who was retained to prepare plans of the Whiskey Creek Road property. Mr Wheatley stated that the house plan was based upon separate living areas for Mr Proctor and Ms Haemmerle. Mr Torbet stated that the plans included two separate accommodations in the same house.

Mr Aiken said that the design was never sought as a dual occupancy. He said the house was intended to be very open, with minimal internal walls or private spaces. He stated that it was not possible for two persons to live separately in it.

I have received in evidence this morning two documents at the request of Ms Haemmerle upon which she bases an assertion that I should not accept Mr Aiken’s evidence. Firstly, there is a document which states that he has not been a member of the Building Designer’s Association of New South Wales Incorporated; and secondly, a document which states that he has never been registered as an architect in New South Wales. In the first paragraph of Mr Aiken’s affidavit, he states that he is an architect operating a business as such. However, notwithstanding this material, the evidence of Mr Aiken is supported from the terms of the deed of December 2002 which, in paragraph 12 made specific provision for the conversion of the proposed dwelling to dual occupancy if certain circumstances arose. It is therefore apparent that the house was never in fact designed to allow separate accommodation to Mr Proctor and Ms Haemmerle.

(6) The overall evidence of Ms Haemmerle in both her affidavits and her responses to questions in cross-examination left me with the impression that she would say anything to protect her current position as tenant in common as to a one-half share in the property.

20 For these reasons, I prefer the evidence of Mr Proctor and his witnesses to that of Ms Haemmerle and her witnesses.

Issue 2 - the nature of the relationship

21 In determining this issue, I have had regard to the elements set out in s 4(2) of the Act.

Element (a) - the duration of the relationship.

22 There was evidence that the parties met in October 1999, and that they separated in January 2003.

Element (b) - the nature and extent of common residence.

23 The evidence indicated that the parties lived separately up to early 2002, but that each party regularly visited the others home. The evidence suggested that they shared accommodation on several trips away from Sydney and that they shared a room at a hotel in Dorrigo until they moved into rented accommodation in Oak Street, Dorrigo. It was agreed between the parties that they had separate bedrooms in the Oak Street flat and that they had their own telephone lines. I accept the evidence of Mr Proctor that they proposed to share the house to be constructed at Whiskey Creek Road, but that they would occupy separate bedrooms at the house.

Element (c) - whether or not a sexual relationship existed.

24 It was agreed between the parties that in the initial stages of the relationship there was some sexual contact. There was disagreement as to its extent. The inconsistencies in Ms Haemmerle’s evidence lead me to accept the evidence of Mr Proctor that sex occurred fortnightly over a period between October 1999 and February or March 2001, when sexual contact ceased.

Element (d) - the degree of financial dependence or interdependence and any arrangements for financial support between the parties.

25 It was clear on the evidence that Mr Proctor provided a substantial degree of financial support for Ms Haemmerle. He purchased a car for her shortly after the relationship commenced, in the sum of $2,000. He paid her $200 per fortnight, by arrangement, for companionship and sex. On a visit to Lightning Ridge, he purchased opals for the sum of $1,600, which Ms Haemmerle has retained.

DEFENDANT: No evidence.

HER HONOUR: When they went on their trips - Ms Haemmerle, if you wouldn’t mind remaining silent, thank you.

DEFENDANT: I’m sorry, your Honour.

HER HONOUR: You have a right of appeal if you think I have made a mistake.

DEFENDANT: Thank you, your Honour.

HER HONOUR

26 When they made their several trips away from Sydney, Mr Proctor met the expenses of accommodation for those trips. Mr Proctor paid for the bond and all rent and outgoings on the flat in Oak Street, including the cost of both telephone lines. Mr Proctor paid the purchase price and all costs and expenses of the acquisition of the Whiskey Creek Road property. Mr Proctor provided all funds for improvements to the property. Mr Proctor gave Ms Haemmerle money regularly during their period of residence at Dorrigo, including payment for her riding lessons. Between May 2002 and January 2003, Mr Proctor provided financial support for Ms Haemmerle after her Centrelink benefit had been withdrawn.

27 Ms Haemmerle denied that any financial support of this kind had been provided and that any payment of $200 per fortnight was made before the move to Dorrigo. She claimed that she had always been financially independent through employment, social security benefits or money provided by her mother. Other evidence suggested that this claim was not true. There was evidence of very limited periods of casual employment during the term of the relationship and of a very limited income. There was nothing in Ms Haemmerle’s mother’s affidavit concerning the provision of funds to her daughter. There was ample evidence of the provision of funds by Mr Proctor.

28 Finally, whilst claiming that she was financially independent of Mr Proctor, Ms Haemmerle claimed economic abuse when he left the Oak Street flat, leaving her with only $50 and no other means of support.

29 In those circumstances I accept Mr Proctor’s evidence as to the measure of financial support provided during the course of the relationship.

Element (e) - the ownership, use and acquisition of property.

30 I have already dealt with this aspect of the relationship.

Element (f) - the degree of mutual commitment to a shared life.

31 Mr Proctor’s evidence was that he left the Central Coast for Dorrigo on the basis that he and Ms Haemmerle would share their lives as loving companions at the Whiskey Creek Road property. Ms Haemmerle said that they were to live in the same house at flatmates and lead separate lives. He was to paint and she was to pursue her career as an interior designer. I do not accept Ms Haemmerle’s evidence as probable. There is little evidence that she ever had a career as an interior designer or that she was working as such at the time the relationship commenced. The investment by Mr Proctor of the proceeds of sale of his sole significant asset I regard as a substantial commitment to a shared life with Ms Haemmerle.

Element (h) - the performance of household duties.

32 I regard this element as somewhat insignificant to the overall decision, although the evidence agreed between the parties was that they had a rostered system for cleaning their flat in Oak Street. Mr Proctor stated that they shared the cooking roles. Ms Haemmerle agreed, but asserted that this was only for the purpose of minimising their expenditure.

Element (i) - the reputation and public aspects of the relationship.

33 I have already noted that I accept the evidence of Mr Proctor’s witnesses on this element. Their evidence was that the parties presented as a couple, with demonstrations of affection and shared interests.

34 The result is that I find that there was sufficient evidence in the elements of common residence, financial dependence, acquisition of property, mutual commitment, performance of household duties and the public aspects of the relationship to establish a de facto relationship at least between early 2002 and January 2003. This was a relationship of relatively short duration in which there was no sexual element. I have already noted that I accept that this is a situation in which the exception provided in s 17 of the Act should be applied.

Issue 3 - the effect of the deed of December 2002

35 Ms Haemmerle relied upon the deed to maintain her claim to retain her half share in the Whiskey Creek Road property. I do not propose to have regard to the provisions of the deed for the following reasons.

(1) The deed does not meet the requirements of a domestic relationship agreement set out in s 47 (1) (d) and (e) of the Act. I acknowledge the evidence of Mr Proctor that he had been advised by a solicitor that he should not sign a prior draft of the deed. However, he did not receive advice on the document which he eventually did sign, and I accept his evidence that he signed under pressure and in an effort to secure some rights to at least some share in the property.

(2) The deed makes provision for the ongoing responsibilities of the parties in respect of the construction of the dwelling and its occupation in anticipation of a continuing relationship. The relationship has not continued. It ended within a matter of weeks of execution of the deed and there is therefore nothing for it to operate upon.

Issue 4 - the adjustment of interests

36 All other property of the parties was dealt with by interim agreement signed on 12 May 2006. The only property that remains to be adjusted for the purposes of this decision is represented by the parties’ interests in the property at Whiskey Creek Road. It is clear that an adjustment of property in respect of Whiskey Creek Road is necessary. It would be unjust in the circumstances that Ms Haemmerle should retain a one half share in that property. Mr Proctor seeks a transfer of the property to him upon the basis that he pay the sum of $30,000 to Ms Haemmerle. Ms Haemmerle contends that the amount to be paid should properly be $60,000 to compensate her for the work undertaken in improving the property.

37 It is apparent that both parties did expend time and effort on such improvements as were undertaken and, in the circumstances, I propose that the amount to be paid to Ms Haemmerle should be $40,000.

38 My orders in this matter are as follows:

1. I make a declaration pursuant to ss 5, 17, 20, 44 and 47 of the Property (Relationships) Act 1984 that the deed dated 17 December 2002 between the parties does not preclude adjustment of their property interests.

2. Ms Haemmerle is to transfer her interest in the property at Whiskey Creek Road, Dorrigo to Mr Proctor within 28 days of the date of this judgment and in default thereof the Registrar of the District Court is empowered to execute all relevant documents to effect such transfer in her stead.

3. Upon completion of the transfer, Mr Proctor is to pay to Ms Haemmerle the sum of $40,000 by way of final property settlement.

4. Further, or in the alternative, the property is to be listed for sale forthwith with an agreed real estate agent for a price as determined by the real estate agent. The proceeds of sale are to be divided as follows:

(1) Payment of all advertising and real estate and legal fees associated with the sale;

(2) The balance of the proceeds to be divided as to $40,000 to Ms Haemmerle and as to the balance to Mr Proctor.

5. The parties are declared to have the sole right and interest in:

(1) Any chattels, goods, furnishings, motor vehicles and other property with are, at the date hereof, in their possession respectively;

(2) Any monies or superannuation in their sole name respectively at the date hereof.

6. The parties are to do all acts and things and give all consents and execute all documents and writing necessary to give effect to the orders which I have made.

7. In the event that either party refuses to execute any deed or instrument, the Registrar of the Court is appointed pursuant to s 39 to execute such deed or instrument in the name of such party and to do all acts or things necessary to give validity to the operation of the deed or instrument.

8. Ms Haemmerle is to pay Mr Proctor’s costs of the proceedings. I decline to make an order in respect of indemnity costs.

9. Exhibits to be retained for 28 days.

10. I make no special orders in respect of the materials supplied under subpoenae as Ms Haemmerle has copies of the materials produced.

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