Stroud v Simpson-Phillips

[1999] NSWSC 994

CITATION:	Stroud v Simpson-Phillips [1999] NSWSC 994 revised - 01/10/99
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	3416/97
HEARING DATE(S):	9 April 1999
JUDGMENT DATE:	29 September 1999
PARTIES :	James Godfrey Stroud (P & Cr-D) Violet Grace Simpson-Phillips (D & Cr-Cl)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. M. Errington (P) Mrs. R. Winfield (D)
SOLICITORS:	Riley Marks McLachlan Hovan & Co (D)
CATCHWORDS:	De Facto Relationships Act 1984; Relationship obtained during two distinct periods, interrupted by a separation; Adjustment of interests in property; Respective contributions of each party; Respective earnings and income of parties; Plaintiff principal breadwinner.
ACTS CITED:	De Facto Relationships Act 1984 Property (Relationships) Act 1984
CASES CITED:	Evans v Marmont (1997) 42 NSWLR 70
DECISION:	See Paragraph 31

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 29 September 1999

3416 of 1997 JAMES GODFREY STROUD -v- VIOLET GRACE SIMPSON-PHILLIPS

JUDGMENT

1    MASTER: These are proceedings under the De Facto Relationships Act 1984 (which is now known as the Property (Relationships) Act 1984). 2 By statement of claim filed on 31 July 1997 the plaintiff, James Godfrey Stroud, claims orders adjusting the interests of himself and the defendant, Violet Grace Simpson-Phillips, in property, pursuant to section 20 of the De Facto Relationships Act. 3    It was not in issue that the parties had been in a de facto relationship. However, the period of that relationship was disputed. The parties commenced co-habitation at 53 Topping Avenue, Sale, in Victoria. The parties were in agreement that that cohabitation commenced in January 1986, and continued, after they moved to Sydney, in January 1987. On 2 July 1987 there was born to the parties a daughter, Chanelle Jaimi Violet La Tour-Stroud (who is now aged eleven). 4    According to the plaintiff (but denied by the defendant) the parties ceased co-habitation in March 1989, although, for a period, they continued to reside in the same house. 5    It was the assertion of the plaintiff that the parties resumed co-habitation in March 1992. 6    The defendant did not agree with those dates. Although in her cross-claim the defendant asserted that the first period of the relationship came to an end in January 1991, she said in her oral evidence in chief that there appeared to be some mistake in that regard, and that the separation between the parties was from May 1990 to December 1991. Accordingly, I have accepted that it is now the case for the plaintiff that she asserts that the first period of the relationship came to an end in May 1990, and that the second period of the relationship commenced in December 1991. Ultimately, however, the defendant agreed that she had received a pension (as a sole parent) from the Department of Social Security from March 1989. She also agreed under cross-examination that she had no independent recollection of when the separation between the parties commenced. 7    The final separation and the termination of the relationship was on 28 January 1996. 8    In the light of the foregoing concessions by the defendant under cross-examination, and in the light of the defendant’s income tax return for the year ended 30 June 1989 (including a statement of pension from the Department of Social Security for disclosing payment of a sole parent’s pension for the period 3 May 1989 to 30 June 1989) I am satisfied that the evidence of the plaintiff that the first period of the relationship terminated in March 1989 should be accepted. Although the plaintiff in his oral evidence said that he did not regard the defendant as his spouse during the period of separation, his income tax returns for the period 1990 - 1992 disclose the defendant as being identified as his spouse at least throughout the relevant taxation years. 9    The plaintiff was born on 10 October 1946, and is now aged 52 years; the defendant was born on 22 March 1948, and is now aged 51 years. 10    At the commencement of the relationship the plaintiff’s assets consisted of investments of $10,000, furniture and personal effects of $5,000, and a superannuation entitlement of $82,000. The defendant owned furniture and personal effects (including some jewellery) having a value of about $7,500. She owned a 1983 Mustang motor vehicle, and, according to her, had a one half interest in land in the United States of America. She also was liable for repayment of a loan of $2,800. 11    In 1987 (according to the defendant, in December of that year) the parties purchased as joint tenants a house property situate at and known as 1 Narraburra Close, Mount Colah, for a purchase price of $148,000. That purchase was funded by a mortgage from Citibank in the sum of $63,000, a loan from Esso (which was the plaintiff’s employer at that time) in the sum of $75,000, and the balance of $10,000 from savings of the plaintiff. 12    At the time of the termination of the relationship the assets of the parties consisted of the following:

House property at 1 Narraburra Close, Mount Colah - $215,000 (subject to mortgage of $28,000 to St George Bank and to a further mortgage of $10,000 to St. George Bank).
Contents - $5,000
Holden motor vehicle - $5,500
Plaintiff’s shareholdings and investments - $20,000
Plaintiff’s superannuation entitlement - $264,000.

13    The plaintiff is a computer programmer by occupation. Apart from two relatively small periods, of a few months on each occasion, the plaintiff was in full-time (and relatively well-paid) employment throughout the entirety of the relationship. The defendant was not in full-time, and usually not even in part-time, employment throughout the relationship. Certainly after the birth of their daughter Chanelle the defendant did not choose to be in employment. 14    It was agreed between the parties that the present value of the house property at Mount Colah (which is the substantial item in dispute in the present proceedings) is $265,000. It was further agreed that the value of that house property at the time of the termination of the relationship was $215,000. 15    The defendant by her defence (filed on 23 October 1997) opposed the relief sought by the plaintiff. By a cross-claim (also filed on 23 October 1997) the defendant sought, inter alia, orders that the Mount Colah property be transferred to her, that the plaintiff discharge the two mortgages over that property, and that the plaintiff pay the private school fees of Chanelle at the Pymble Ladies College (although at the conclusion of the hearing that last claim for relief was expressly abandoned by the defendant). 16 Pursuant to the provisions of section 18 of the De Facto Relationships Act, the defendant requires an appropriate order for the extension of time in respect to any claim made by her concerning the first period of the relationship (from January 1986 until, according to the plaintiff, March 1989, or, according to the defendant, May 1990) since, whichever of the asserted dates be accepted as the date of termination of the first period of the relationship, the present proceedings were not instituted within two years of that termination. At the outset of the hearing the defendant filed a notice of motion seeking such an extension of time. The plaintiff does not consent to that extension of time. 17    The plaintiff seeks an order that the house property at Mount Colah should be sold and the net proceeds of sale be divided equally between the plaintiff and the defendant. The defendant, on the other hand, whilst agreeable to the sale of the house property, claims the entirety of the net proceeds of sale. 18    A considerable part of the hearing was devoted to the assertions of the plaintiff (which were vehemently denied by the defendant) concerning an alleged gambling addiction of the defendant. 19    I am entirely satisfied that those assertions were true and accurate, and that the defendant indulged in gambling at least to the extent asserted by the plaintiff. 20    Throughout the entirety of each period of the relationship the plaintiff was the principal breadwinner. It was his earnings which maintained the household and the family consisting of himself, the defendant and, after her birth on 2 July 1987, their daughter Chanelle. 21    During the period of separation, from March 1989 until March 1992 (throughout most of which period the plaintiff was not residing in the Mount Colah property), the plaintiff continued to make all the payments on the housing loans in respect to the house property. At various times throughout the relationship the plaintiff paid the credit card liabilities of the defendant. 22    The defendant made little, if any, financial contribution towards the household or towards the family unit. Indeed, to a very large extent (at least to an amount exceeding $14,000) the defendant expended money on gambling, and was largely supported in that activity by monetary advances from the plaintiff. 23    To the extent that it is necessary for me to do so, I express the view that I preferred the evidence of the plaintiff to that of the defendant. The plaintiff’s evidence, especially concerning financial matters, and advances by him to the defendant, was supported by documentary material. Where the evidence consisted of assertions made by one party and denied by the other, and with no independent or documentary material to support the evidence of one or other of the parties, I prefer the evidence of the plaintiff to that of the defendant. 24    I have already referred to the notice of motion filed by the defendant on 9 April 1999 seeking an extension of time in respect to her cross-claim. In the light of my ultimate conclusions, it is not necessary for me to grant such an extension of time, since whether or not I extend time, there would be no practical difference in the outcome of the present proceedings. Accordingly, I propose to dismiss that notice of motion. 25    In 1994 the plaintiff’s employment with Esso was made redundant. He received a total amount of $156,000 in redundancy payments from that employer. That amount was disbursed as follows:

Payment upon mortgage on house property - $91,000
Motor vehicle - $9,000
Expenditure on living expenses - $46,000
Investments - $10,000

26 Attempts were made on behalf of the defendant to adduce evidence concerning her present financial and material circumstances, and in particular, concerning what was alleged to be her present need. All that material was totally irrelevant to any matter which I must determine in the present proceedings, which relate to an order for the adjustment of the rights of parties in property, pursuant to section 20 of the De Facto Relationships Act. (See Evans v Marmont (1997) 42 NSWLR 70 per Gleeson CJ and McLelland CJ in Eq.) 27 The only contributions made by the defendant to the relationship were in her roles as homemaker and mother. I do not consider that she devoted a great deal of her time or energy to fulfilling those roles. Indeed, for very substantial parts of each of the two periods of the relationship it was the plaintiff who fulfilled the principal roles as homemaker and as parent to Chanelle, since the defendant was very frequently absent from home, indulging her gambling addiction at various clubs and gaming rooms. 28 The plaintiff, as I have already recorded, seeks that the house property should be sold and the net proceeds of sale divided equally between the parties. Counsel for the plaintiff emphasised that that relief was what the plaintiff regarded as being fair in all the circumstances. Were it not for that attitude adopted by the plaintiff, I would have been disposed to make an order giving to the plaintiff considerably more than one half of the net proceeds of sale. 29 Since the plaintiff seeks no more that one half of the net proceeds of sale, I propose to make an order to that effect. Such an order will reflect a total success to the plaintiff in the proceedings. It would follow, therefore, that he should have an order that the defendant pay his costs. However, since I have not heard any submissions concerning costs, I shall allow to the defendant an opportunity to be heard on costs, if she so desires. Accordingly, unless within a period of seven days from the date hereof either party arranges with my Associate to have the matter listed for argument as to costs, the order will be that the defendant pay the costs of the plaintiff. 30 Since a number of items of relief sought by the parties (especially those relating to the chattels and contents of the house property, and relating to the funds in the account described as “Chanelle’s Trust”) have not been the subject of submissions, I propose to stand the matter over to a date to be fixed, for the bringing in of short minutes of order, to reflect my foregoing conclusions. Those short minutes should also include an order for dismissal of the notice of motion filed by the defendant on 9 April 1999. 31 I make the following orders:

1. I stand the matter over to a date to be fixed, for the bringing in of short minutes of order.

2. Unless within a period of seven days from the date hereof either party arranges with my Associate to have the matter listed for argument as to costs, the short minutes will include an order that the defendant pay the costs of the plaintiff.

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Last Modified: 10/01/1999