Bilous v Mudaliar [2005] NSWSC 71

Bilous v Mudaliar [2005] NSWSC 71

The court holds that an adjusting order is just and equitable under s 20 of the Property (Relationships) Act 1984 (Cth) to restore to the plaintiff, so far as practicable, his 50% interest in the increase in capital value of the 71 Berner Street property, reflecting his contributions and the parties' original expectations, with provision for an additional monetary adjustment for later contributions, counterbalanced by the value of post-separation occupation and other reciprocal benefits; further adjustments and orders are made to resolve outstanding financial relationships between the parties.

Jurisdiction
Australia
Judgment Date
18 February 2005
Procedural Posture
Application Under S 20 of the Property (relationships) Act 1984 (cth) / Judgment After Hearing of Application
Outcome
Orders made for payment and property adjustment; final orders to be brought in by counsel for the plaintiff; some claims dismissed; costs and further orders stood over.
Legal Topics
['de Facto Relationships' 'adjusting Property Interests' 'contributions to Property' 'superannuation' 'trusts' 'division of Property on Relationship Breakdown']
['property Law' 'equity' 'family Law'] ['de Facto Relationships' 'adjusting Property Interests' 'contributions to Property' 'superannuation' 'trusts' 'division of Property on Relationship Breakdown']

Case Brief

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Procedural Posture

Application Under S 20 of the Property (relationships) Act 1984 (cth) / Judgment After Hearing of Application

Legal Issues

  1. 1 ["Whether an adjusting order is just and equitable having regard to the parties' respective contributions and expectations of continuing relationship under s 20 of the Property (Relationships) Act 1984 (Cth)" "Nature and quantum of the parties' respective financial and non-financial contributions to property and welfare" 'Validity of transfer and redemption of units in Berner Property Trust' 'Accounting for occupation of property post-separation' 'Whether property held by Jeevan Investments Pty Ltd is subject to a trust in favour of the plaintiff']

Ratio Decidendi

The court holds that an adjusting order is just and equitable under s 20 of the Property (Relationships) Act 1984 (Cth) to restore to the plaintiff, so far as practicable, his 50% interest in the increase in capital value of the 71 Berner Street property, reflecting his contributions and the parties' original expectations, with provision for an additional monetary adjustment for later contributions, counterbalanced by the value of post-separation occupation and other reciprocal benefits; further adjustments and orders are made to resolve outstanding financial relationships between the parties.

Court Disposition

Orders made for payment and property adjustment; final orders to be brought in by counsel for the plaintiff; some claims dismissed; costs and further orders stood over.

Orders

  • ['First defendant to pay to J & J Superannuation Pty Ltd $47,163 plus interest from 31 August 2003 to the date of the order.' 'First defendant to pay to the plaintiff $86,000 plus interest from 31 August 2003 to date of orders, plus $25,000, less the assessed value for occupation of 1/71 Berner Street.' 'Order...