Smith v Harrison

[2008] TASSC 78

[2008] TASSC 78

CITATION:               Smith v Harrison [2008] TASSC 78

PARTIES:  SMITH, Nicole Ann
  v
  HARRISON, Gregory James

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  796/08
DELIVERED ON:  1 December 2008
DELIVERED AT:  Hobart
HEARING DATE:  1 December 2008
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Family Law and Child Welfare – De facto relationships – Adjustment of property interests – Relevant considerations – Just and equitable.

Aust Dig Family Law and Child Welfare [496]

REPRESENTATION:

Counsel:
           Applicant:                  J Hutchinson             
           Respondent:  No appearance
Solicitors:
           Applicant:  Fitzgerald & Browne
           Respondent:  No solicitor
Judgment Number:  [2008] TASSC 78
Number of paragraphs:  24

Serial No 78/2008

File No 796/2008

NICOLE ANN SMITH v GREGORY JAMES HARRISON

REASONS FOR JUDGMENT  HOLT AsJ
  1 December 2008

1. This is an application under the Relationships Act 2003 for orders for the adjustment of interests in property.

1. The application and affidavit in support were served on the respondent, but he has not participated in the proceedings. 

1. The applicant is aged 29 and the respondent 30.  They commenced cohabitation in 1999 and separated in February 2007.  There are no children of the relationship.

1. Neither had any assets of significance at the commencement of the relationship. 

1. At the end of the relationship they had a house at Glenorchy and some household effects. 

1. When the applicant left the house to return to live with her parents in February 2007 she took with her some furniture which she had owned at the commencement of the relationship and a television and washing machine which the couple had purchased during the relationship.  She also took with her a car worth about $2,000.  She left with the respondent some other assets purchased during the relationship, namely, a refrigerator, a microwave oven, a play station and two mountain bikes.

1. The applicant has superannuation to a value of about $25,000.  She has a motor vehicle which she purchased in March 2007 for $10,000 and about $1,000 in the bank.  She has borrowings of about $15,000.  She is in good health and employed earning a salary of about $45,000.

1. The applicant believes that the respondent is unemployed and living with his parents. 

1. The applicant paid most of the household expenses enabling the respondent to put money into a savings account.  By December 2006 $8,500 had been saved.  It was used by the couple with the first home owner's grant, to buy the house at Glenorchy.  The purchase price was $180,500.  Mortgage finance of about $172,000 was raised. 

1. The house was sold in July 2008 for $210,000 with the balance proceeds being $26,212.78.  The proceeds are currently held in the trust account of the applicant's solicitors pending the resolution of this matter. 

1. The application, par1, is in terms:

"That …, the Respondent transfer all his … interest … in the sum of $26,212.78 held in the … trust account to the Applicant …"

1. In the application the applicant also seeks orders that the respondent pay her costs of this proceeding.  The balance of the orders sought are to the effect that each party keep whatever else they have in their possession or in their names and be responsible for whatever debts are in their names. 

1. The jurisdiction, under the Act, to make orders adjusting interests in property arises in specified circumstances including those which apply here, namely, where the parties have lived as a couple for a continuous period of not less than two years.

1. Under the Act, the Court may make such orders as are considered to be just and equitable.  The Act sets out a number of matters to be taken into account.  Important considerations include the contributions made to the acquisition, conservation and improvement of the property of the partners  and their financial resources and needs. 

1. The respondent remained in possession of the house from the time of separation of the couple in February 2007 until about April 2008.  He paid no rent and made little contribution to the mortgage payments during the period of his sole occupancy.  The property was tenanted in about May 2008 and the rent was applied in whole to meeting mortgage commitments.  The rent was $230 per week.

1. The contributions to the mortgage instalments between the time of purchase of the house and its sale in July 2008 were as follows.  The applicant paid about $15,000;  the respondent paid about $5,400 and the tenants paid about $2,700. 

1. Rates and the insurance renewal premium became due for payment in the financial year following settlement of the purchase.  The rates were about $1,500 per year and the insurance about $800.  The applicant paid $620 for rates.  The respondent paid nothing.  The rates arrears were recovered by the Council on the settlement of the sale of the house.  The applicant paid about $800 for the insurance.

1. In April 2008, in order to make the house ready for renting, the applicant undertook on her own painting and cleaning work.  She spent about $350 on paint and cleaning products. 

1. At separation the applicant was left to pay a telephone bill of about $400 consisting of charges for phone calls made by the respondent.  After separation, the respondent took from a joint account, which was used to make the mortgage payments, $300, forcing the applicant to top up this account. 

1. The applicant made by far the major financial contribution relating to the house.  There is no evidence of the respondent making any significant non-financial contributions to the maintenance or improvement of the house. 

1. I take into account that since separation the applicant has been employed on a good salary and appears to be better resourced than the respondent.  I have no evidence, however, to indicate that the earning capacity and needs of the parties significantly differ.

1. Even though the respondent has not contested the applicant's claim to the whole of the proceeds of the sale of the house I have no authority under the legislation to make such an order unless I consider it to be just and equitable.  As the respondent was a substantial financial contributor to the acquisition of the house I do not consider it to be just and equitable that he receive nothing from the sale proceeds.  He should receive something, but significantly less than the applicant to recognise her greater financial contribution and his period of rent free accommodation.

1. I consider that a just and equitable apportionment of the property of the parties is for each to keep whatever assets they have in their possession or  names.  For each to be responsible for debts in their names.  For the applicant to be paid $18,000 plus her legal costs out of the proceeds of the sale of the house with the respondent to be paid the balance.  The applicant's legal costs to just prior to the commencement of the hearing were $1,842. 

1. These will be the orders:

(1)The interests with respect to the property of the parties is to be finally adjusted between them by them keeping or being responsible for assets or debts in their respective possession or names and by the funds from the sale of the house including interest, held in the solicitors' trust account, being applied firstly to the payment of $18,000 to the applicant; secondly to the payment to the applicant of her taxed costs of these proceedings and, thirdly to the payment of the balance to the respondent.

(2)The respondent is to pay the applicant's taxed costs of the proceedings.