Davis v McElwaine & Ors [2008] NSWSC 1360

Davis v McElwaine & Ors [2008] NSWSC 1360

Because the parties had been in a de facto relationship for over nine years, the plaintiff made substantial financial and non-financial contributions to the property, the first defendant's businesses, and the welfare of the family as primary homemaker and carer, and because the first defendant had abandoned the plaintiff to meet liabilities for which he was jointly responsible, it was just and equitable under s 20 Property (Relationships) Act 1984 that the first defendant transfer all his interest in the Maitland Street, Stockton property to the plaintiff, subject to any valid mortgage held by the second defendant.

Jurisdiction
Australia
Judgment Date
17 December 2008
Procedural Posture
Claim for Adjustment of Property Under S 20 Property (relationships) Act 1984 / Principal Judgment After Hearing; First Defendant in Default
Outcome
Adjustment of property ordered in favour of the plaintiff; first defendant to transfer all his interest in the Maitland Street, Stockton property to the plaintiff, subject to any valid mortgage held by the second defendant.
Legal Topics
['adjustment of Property Interests' 'financial and Non Financial Contributions' 'homemaking and Parenting Contributions' 'default Judgment' 'mortgage Liabilities' 'de Facto Relationship Property']
['de Facto Relationships' 'property Law' 'equity' 'civil Procedure'] ['adjustment of Property Interests' 'financial and Non Financial Contributions' 'homemaking and Parenting Contributions' 'default Judgment' 'mortgage Liabilities' 'de Facto Relationship Property']

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Procedural Posture

Claim for Adjustment of Property Under S 20 Property (relationships) Act 1984 / Principal Judgment After Hearing; First Defendant in Default

Legal Issues

  1. 1 ['Whether the plaintiff and the first defendant were in a de facto relationship and whether the statutory requirements for an application under the Property (Relationships) Act 1984 were met.' "Whether an order should be made under s 20 Property (Relationships) Act 1984 adjusting the parties' interests in the Maitland Street, Stockton property." "How the Court should assess the parties' financial and non-financial contributions, including homemaking and parenting contributions, and contributions to acquisition, conservation or improvement of property and business interests." 'Whether it was just and equitable for the first defendant to transfer all his interest in the property to the plaintiff so she could resolve liabilities under the home loan, commercial loan and contract for sale of unit 1.']

Ratio Decidendi

Because the parties had been in a de facto relationship for over nine years, the plaintiff made substantial financial and non-financial contributions to the property, the first defendant's businesses, and the welfare of the family as primary homemaker and carer, and because the first defendant had abandoned the plaintiff to meet liabilities for which he was jointly responsible, it was just and equitable under s 20 Property (Relationships) Act 1984 that the first defendant transfer all his interest in the Maitland Street, Stockton property to the plaintiff, subject to any valid mortgage held by the second defendant.

Court Disposition

Adjustment of property ordered in favour of the plaintiff; first defendant to transfer all his interest in the Maitland Street, Stockton property to the plaintiff, subject to any valid mortgage held by the second defendant.

Orders

  • ['The first defendant forthwith transfers to the plaintiff all his interest in the property at Maitland Street, Stockton subject to such valid mortgage as the second defendant holds as security.' 'Ancillary orders are to be made as appropriate to effect the adjustment.' 'A declaration is appropriate that the parties...