WB v JS[2007] QSC 180

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No 1989 of 2006

BRISBANE

DATE 13/07/2007

JUDGMENT

HER HONOUR:  This was the hearing of an application under Part 19 of the Property Law Act 1974 for a just and equitable property distribution at the end of a de facto relationship between the applicant WB and the respondent JS.

The applicant is 62 years of age, having been born in June of 1945, and the respondent is 57 years old, having been born in April 1950.  They met in early 2002 and formed a warm and loving relationship with one another.  They had both been previously married and both had children.  The relationship eventually matured into a de facto relationship.

As 2002 wore on they began to talk about their future together and decided that they would move from New South Wales where they lived to the Sunshine Coast and live there together. Both of them gave evidence in this Court and both of them impressed me as decent people who, of course, were at that time optimistic that they would have a lasting relationship together.  Tragically for them both it did not work out.

In November 2002 was the time when their relationship matured into a de facto relationship.  They merged their lives in that month by purchasing together a rural property on the Sunshine Coast in which they were to live together.  Prior to that time the applicant had owned a home in New South Wales and a beach shack and the respondent had also owned a home in New South Wales and a unit on the Sunshine Coast.  They each sold their properties in New South Wales and the unit on the Sunshine Coast was available for their joint use.  In addition the respondent's parents moved to the unit on the Sunshine Coast.  They were elderly and unwell and very recently the respondent's father has in fact died.  His mother remains in the unit needing his care.

There is a dispute as to when the relationship ended, but it is not relevant to the division of property, the question before me.  The relationship began to become acrimonious at the beginning of 2005 and finally ended on 16 June 2005 when the respondent went to the Gold Coast for the weekend without the applicant.  One can certainly say that the relationship was finished as at that date, although in the months preceding it during 2005 the relationship had certainly been in trouble and was doomed.  All that is necessary to say for these purposes is that the relationship was certainly finished by 16 June 2005.

In order to determine a just and equitable distribution of the property it is necessary to consider all the factors set out in Part 19.  A convenient way of doing this was held by the Court of Appeal in F O v. H A F (2006) QCA 555 at [51]-[52], to follow the four step approach explained by the Full Court of the Family Court in Hickey v. Hickey (2003) FLC 93-143 at 78,386.  The first step is to identify and value the property, resources and liabilities of the parties.  The second step is the identification and assessment of the contributions of the parties to the pool of assets and the determination of their contribution based entitlements in accordance with sections 291 to 295 of the Property Law Act.  The third step is the identification and assessment of the factors in sections 297 to 309 of the Property Law Act to determine any adjustment to the contribution based entitlement, and the fourth step in the process is consideration of the result of these earlier steps to determine whether that result is just and equitable in

accordance with section 286 of the Property Law Act.

The parties agreed at the commencement of proceedings on the identification and valuation of the property resources and liabilities of the parties.  That is set out in Exhibit 1 and it involves a valuation of the rural property on the Sunshine Coast which they bought to reside in together, the unit on the Sunshine Coast, a business operated by the respondent and a motor vehicle together with some moneys.  The net result is that the value of the property that comes to be considered is $1,044,235.

The second step is the identification and assessment of the contributions to the parties to the pool of assets and the determination of their contribution based entitlements.  In my view, during the relationship both parties endeavoured to contribute equally, whether by money or domestic and other work to the relationship.  They were in every sense during the relationship equal partners.  So, the relevant amounts to look at for the contribution based entitlement in such a relatively short relationship is what they brought in to the relationship in terms of contributions.

I have heard detailed submissions on that and it appears from those submissions and from the evidence that the applicant contributed an amount of $414,486.03 and that the respondent contributed an amount of $437,472.80.  Those amounts are made up in the following way:  the applicant contributed $110,000 on the 19th of December 2002, $25,200.86 on the 15th of January 2003, $18,101.87 on the 18th of March 2003, and $261,183.30 on the 18th of July 2003.  The respondent contributed as at mid November 2002 from his ANZ investment account $37,374.19, from the sale of his property in New South Wales $230,000, on the 20th of July 2003 $42,011.61, from his son who purchased the property in New South Wales net payments of $26,000, payments made by his siblings to the Sunshine Coast unit of $4,087 and a net value of the Sunshine Coast unit after the mortgage liability is taken off of $98,000.

The next stage is to look at the factors found in sections 297 to 309 of the Property Law Act to determine any adjustment that should be made to the contribution based entitlement.  As can be seen from the second stage, their contributions into the relationship were almost 50/50.  This is similar to their contributions during the relationship, which I take to be equal to each other. 

The applicant is older and in less good health than the respondent.  Both appear to have the capacity to work, although neither appears to have the capacity to work in very remunerative employment.  Each are entitled to an equal standard of living.  The relationship was not a particularly long one, but given the difference in their age and health it appears appropriate to me to adjust the slight disparity in their contributions as a result of those factors to be 50/50.

The next stage is to look at whether that result is just and equitable and it appears to me that it is.  It reflects the nature of the relationship and given its short period of time it is appropriate that they are each entitled to half of the joint pool of assets available for distribution.

The applicant desires to retain and remain living in the jointly owned Sunshine Coast property and she should have the capacity to do so if she is able to pay the respondent sufficient to mean that he does have a 50 per cent share of the property available for distribution.

The orders will be that the applicant is entitled to keep the motor vehicle worth $10,000 and the advance she 's already received of $75,000 and the Sunshine Coast property which is worth $575,000, but her capacity to keep the Sunshine Coast property is conditional upon her being able to pay to the respondent the sum of $137,882.50 by the 13th of September 2007.  If she is unable to do so, that is failing payment of that amount, by the 13th of September 2007 Robert Cartmill, solicitor, or if he be unable or unwilling to accept appointment a nominee of The President of the Queensland Law Society, be appointed trustee to sell the Sunshine Coast property.

Upon the sale of that property the gross sale proceeds are to be applied in the following order and manner:

(1)real estate commission, trustee's costs and auctioneer's costs associated with the sale of the property;

(2)any arrears of rates and land tax relating to the property;

(3)legal costs relating to the sale of the property; and

(4)payment of the adjustment sum of $137,882.50.

If the property is to sell for more or less than $575,000 then the excess or deficit is to be shared equally between the parties.

There will be no order as to the costs of these proceedings.

The precise terms of the order will be as per the draft to be given to me by the parties which I will initial and place on the file.