CITATION: Sudsai v Barbetti & Anor [2008] NSWDC 30 HEARING DATE(S): 22 October 2007, 23 October 2007, 24 October 2007, 25 October 2007, 26 October 2007, 10 December 2007 and 11 December 2007
JUDGMENT DATE:
18 March 2008JURISDICTION: Civil JUDGMENT OF: Hungerford ADCJ DECISION: (1) Plaintiff entitled to adjustment in her favour of 26 per cent of the property interests of the parties valued as at the date of separation in May 2003; (2) First defendant to pay the plaintiff a lump sum of $199,202 within 28 days; (3) Failing the first defendant’s compliance with payment, the first and second defendants take all necessary steps to effect a sale of their property at Chapel Hill in Queensland and to apply the proceeds to satisfy the payment to the plaintiff in (2) hereof plus interest; (4) First defendant to transfer to the plaintiff within 14 days his interest in the ASG Scholarship Fund, Telstra shares and funds held in trust by Paul & Paul, Solicitors, in relation to Qantas shares; (5) Otherwise, the parties be declared the owners of all the assets presently held by them and be solely responsible for all liabilities held in each of their respective names; (6) No order as to the second defendant’s costs; (7) Plaintiff and first defendant to he heard on costs; and (8) Plaintiff to bring into Court short minutes of order. CATCHWORDS: FAMILY LAW – De facto relationships – Adjustment of - parties’ property interests – Application under s 20 of Property (Relationships) Act 1984 – Relevant property – Superannuation entitlements - Contributions of financial and non-financial nature – Inheritances – Evaluation of contributions – Proper date to value assets – Valuation of overseas real property – Duration of de facto relationship – Nature of a de facto relationship – Time limit of 2 years within which claim to be brought – Leave available to extend limitation period – Significant post-separation expenditure by one party to the - relationship – Notional add-back of such expenditure into asset pool – Homemaking and parenting roles – Nature and type of orders which may be made – Just and equitable order – Holistic approach – Payment of a lump sum – Sale of real property to secure payment – Transfer of interest in personal property – Principles as to costs of proceedings. LEGISLATION CITED: Civil Procedure Act 2005, ss 3 and 98(1)
District Court Act 1973, ss 51 and 134
Evidence Act 1995, ss 128 and 132
Family Law Act 1975 (Cth) ss 75(2) and 117
Legal Profession Act 2004, s 364
Marriage Act 1961 (Cth)
Property (Relationships Act 1984, ss 3(1), 4, 14(1), 15(1), 16, 17, 18, 19, 20, 38 and 42
Uniform Civil Procedure Rules 2005, Pt 42 r 42.1 and Pt 42 r 42.30CASES CITED: Bilous v Mudaliar (2006) 35 Fam LR 55
Chanter v Catts (2005) 64 NSWLR 360
Coghlan (2005) 33 Fam LR 414
Davey v Lee (1990) 13 Fam LR 688
Dunstan v Rickwood (No 2)
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Details
- AGLC
- Sudsai v Barbetti [2008] NSWDC 30
- Case
- [2008] NSWDC 30
- Decision Date
CaseChat Overview and Summary
Sudsai v Barbetti is a case before the court where Sudsai sought an adjustment of the property interests between herself and Barbetti, the first defendant, under section 20 of the Property (Relationships) Act 1984. The case involves a dispute over the division of assets following the breakdown of a de facto relationship. The second defendant is also involved in the proceedings, although the specific details of their involvement are not outlined in the summary.
The court had to determine various legal issues, including the proper evaluation of financial and non-financial contributions made by both parties during the relationship, as well as the inheritances received by the first defendant. The court also needed to decide the appropriate date to value the assets and the method for valuing overseas real property. Additionally, the court had to consider the duration and nature of the de facto relationship, the time limit for bringing a claim, and whether leave should be granted to extend the limitation period. The significant post-separation expenditure by the first defendant and the notional add-back of such expenditure into the asset pool were also factors to be considered. The court further needed to assess the homemaking and parenting roles of both parties and the nature and type of orders that could be made. The court was required to determine a just and equitable order using a holistic approach and to decide whether a lump sum payment, the sale of real property to secure payment, or the transfer of interest in personal property was appropriate. Finally, the court had to consider the principles governing the costs of the proceedings.
The court found that Sudsai was entitled to a 26% adjustment in her favour of the property interests of the parties, valued as at the date of separation in May 2003. The first defendant was ordered to pay Sudsai a lump sum of $199,202 within 28 days. If the first defendant failed to comply with the payment, the first and second defendants were required to take all necessary steps to effect a sale of their property at Chapel Hill in Queensland and apply the proceeds to satisfy the payment to Sudsai plus interest. The first defendant was also ordered to transfer his interest in the ASG Scholarship Fund, Telstra shares, and funds held in trust by Paul & Paul, Solicitors, in relation to Qantas shares to Sudsai within 14 days. The court declared that the parties would be the owners of all the assets presently held by them and be solely responsible for all liabilities held in each of their respective names. The court made no order as to the second defendant's costs and directed that Sudsai and the first defendant be heard on costs. Sudsai was also required to bring into court short minutes of the order.
The court had to determine various legal issues, including the proper evaluation of financial and non-financial contributions made by both parties during the relationship, as well as the inheritances received by the first defendant. The court also needed to decide the appropriate date to value the assets and the method for valuing overseas real property. Additionally, the court had to consider the duration and nature of the de facto relationship, the time limit for bringing a claim, and whether leave should be granted to extend the limitation period. The significant post-separation expenditure by the first defendant and the notional add-back of such expenditure into the asset pool were also factors to be considered. The court further needed to assess the homemaking and parenting roles of both parties and the nature and type of orders that could be made. The court was required to determine a just and equitable order using a holistic approach and to decide whether a lump sum payment, the sale of real property to secure payment, or the transfer of interest in personal property was appropriate. Finally, the court had to consider the principles governing the costs of the proceedings.
The court found that Sudsai was entitled to a 26% adjustment in her favour of the property interests of the parties, valued as at the date of separation in May 2003. The first defendant was ordered to pay Sudsai a lump sum of $199,202 within 28 days. If the first defendant failed to comply with the payment, the first and second defendants were required to take all necessary steps to effect a sale of their property at Chapel Hill in Queensland and apply the proceeds to satisfy the payment to Sudsai plus interest. The first defendant was also ordered to transfer his interest in the ASG Scholarship Fund, Telstra shares, and funds held in trust by Paul & Paul, Solicitors, in relation to Qantas shares to Sudsai within 14 days. The court declared that the parties would be the owners of all the assets presently held by them and be solely responsible for all liabilities held in each of their respective names. The court made no order as to the second defendant's costs and directed that Sudsai and the first defendant be heard on costs. Sudsai was also required to bring into court short minutes of the order.
Orders
Orders of the court
(1) Plaintiff entitled to adjustment in her favour of 26 per cent of the property interests of the parties valued as at the date of separation in May 2003; (2) First defendant to pay the plaintiff a lump sum of $199,202 within 28 days; (3) Failing the first defendant's compliance with payment, the first and second defendants take all necessary steps to effect a sale of their property at Chapel Hill in Queensland and to apply the proceeds to satisfy the payment to the plaintiff in (2) hereof plus interest; (4) First defendant to transfer to the plaintiff within 14 days his interest in the ASG Scholarship Fund, Telstra shares and funds held in trust by Paul & Paul, Solicitors, in relation to Qantas shares; (5) Otherwise, the parties be declared the owners of all the assets presently held by them and be solely responsible for all liabilities held in each of their respective names; (6) No order as to the second defendant's costs; (7) Plaintiff and first defendant to he heard on costs; and (8) Plaintiff to bring into Court short minutes of order.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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