Preiss v Stewart [2005] NSWSC 389

Preiss v Stewart [2005] NSWSC 389

Because the parties treated Alfred Street as a separate investment property and the defendant provided the security and thereafter made substantially greater mortgage contributions, the appropriate division of the Alfred Street proceeds was 20% to the plaintiff and 80% to the defendant. For Albion Street, the defendant's substantial initial equity contribution, ongoing payments after separation, and other contributions justified an 80% share to the defendant and 20% to the plaintiff. After crediting the amount already paid to the plaintiff, the balance due by the defendant to the plaintiff was $16,391.

Jurisdiction
Australia
Judgment Date
13 May 2005
Procedural Posture
Application for Adjustment of the Parties' Property Interests Under the Property (relationships) Act 1984 / Judgment After Hearing
Outcome
The plaintiff's appropriate share was assessed at $226,085, leaving a balance due by the defendant to the plaintiff of $16,391; parties were directed to bring in short minutes and argue costs.
Legal Topics
['property (relationships) Act 1984' 'adjustment of Property Interests' 'financial Contributions' 'non Financial Contributions' 'asset by Asset Approach' 'de Facto Relationship Property']
['family Law' 'equity' 'de Facto Relationships' 'property Adjustment'] ['property (relationships) Act 1984' 'adjustment of Property Interests' 'financial Contributions' 'non Financial Contributions' 'asset by Asset Approach' 'de Facto Relationship Property']

Case Brief

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Procedural Posture

Application for Adjustment of the Parties' Property Interests Under the Property (relationships) Act 1984 / Judgment After Hearing

Legal Issues

  1. 1 ["What adjustment should be made to the parties' property interests following the de facto relationship." 'Whether the remaining property issues should be assessed globally or on an asset-by-asset basis.' 'What proportions of the net proceeds of Alfred Street and the equity in Albion Street should be attributed to each party having regard to their financial and non-financial contributions.']

Ratio Decidendi

Because the parties treated Alfred Street as a separate investment property and the defendant provided the security and thereafter made substantially greater mortgage contributions, the appropriate division of the Alfred Street proceeds was 20% to the plaintiff and 80% to the defendant. For Albion Street, the defendant's substantial initial equity contribution, ongoing payments after separation, and other contributions justified an 80% share to the defendant and 20% to the plaintiff. After crediting the amount already paid to the plaintiff, the balance due by the defendant to the plaintiff was $16,391.

Court Disposition

The plaintiff's appropriate share was assessed at $226,085, leaving a balance due by the defendant to the plaintiff of $16,391; parties were directed to bring in short minutes and argue costs.

Orders

  • ['The plaintiff is to be treated as entitled to 20% of the Alfred Street proceeds, being $84,085.' 'The plaintiff is to be treated as entitled to 20% of the equity in Albion Street, being $142,000.' 'The balance due by the defendant to the plaintiff is $16,391.' 'Parties are directed to bring in short minutes and to...