Smith v Forbes

[2009] NSWDC 62

CITATION:	Smith v Forbes [2009] NSWDC 62
HEARING DATE(S):	07/04/2009
EX TEMPORE JUDGMENT DATE:	9 April 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. The property interests of the parties are adjusted pursuant to section 20 of the Property Relationships Act 1984 so that the sum currently held in the trust account of the plaintiff’s solicitor is to be held for the benefit of the plaintiff. From that sum the liabilities relating to the Bathurst properties are to be discharged and the balance to be paid to the plaintiff. 2. The plaintiff is to indemnify the defendant in respect of any liabilities pertaining to the Bathurst properties, in particular the liability to the Office of State Revenue. 3. The defendant is to indemnify the plaintiff in respect of the liabilities of the company, Derm Pty Limited. 4. The defendant is to pay the plaintiff’s costs of the proceedings on a party and party basis. 5. The Exhibits are to be kept with the file for 28 days
CATCHWORDS:	Adjustment of property interests
LEGISLATION CITED:	Property (Relationships) Act 1984
PARTIES:	Erin Smith (Plaintiff/Cross Defendant) David Forbes (Defendant/Cross-Claimant)
FILE NUMBER(S):	222/08
COUNSEL:	Mr Levick (Plaintiff/Cross Defendant) Self-Represented (Defendant/Cross-Claimant)
SOLICITORS:	Shane Boesen Solicitor (Plaintiff/Cross Defendant) Self-Represented (Defendant/Cross-Claimant)

JUDGMENT

1 The parties in this matter were in a de facto relationship from May 2004 until, on the plaintiff’s evidence, September 2006, or on the defendant’s evidence, October 2006. They seek orders from the Court for an adjustment of their property interests under section 20 of the Property (Relationships) Act 1984.

2 The principles established by the authorities as to the manner in which I adjust those interests involve a three stage process that requires me:
1. to identify and value the assets and liabilities at the time of the hearing;
2. to assess the contributions to the relationship of the parties, financial and non-financial; and
3. to decide whether, having regard to the rights and interests as they stood at the time of the hearing, an
adjustment should be made that would reflect their contributions in an equitable manner.

3 There were no children of the relationship. At the commencement of the relationship, the plaintiff owned a share portfolio that she valued at more than $16,000. She said she also had furniture and clothes. The defendant provided no evidence concerning his asset position at the time. He claimed to hold shares in Telstra which were not valued, but there was no evidence that they were disposed of during the relationship, and I assume that he still holds them.

4 The plaintiff was in paid employment at the commencement of the relationship and she also operated a business registered under the name of Sydney Wine and Party that conducted wine tastings.

5 The defendant operated his own business as a personal trainer.

6 In the course of the relationship, the plaintiff purchased two properties in Bathurst. The first, in Bant Street, was purchased with funds obtained through the sale of the…