1514 of 2009 MARIA DEL MAR NUNEZ BELTRAN -v- JAMES ROBERT HUDSPITH
JUDGMENT
1 HIS HONOUR: By statement of claim filed on 16 February 2009 Maria Del Mar Nunez Beltran claimed an order adjusting the interests in property of herself and the Defendant, James Robert Hudspith (such property being real property being situate at Vaucluse, and being referred to as "the Vaucluse property"), pursuant to the Property (Relationships) Act 1984; and, in the alternative, a declaration that the Defendant holds his interest in the Vaucluse property on a resulting or constructive or implied trust for the Plaintiff.
2 At the outset of the hearing the Plaintiff abandoned her claim in respect to an asserted trust, and proceeded only upon her claim under the Property (Relationships) Act.
3 The Defendant (who acted for himself, without legal representation in the proceedings, and who appeared in person at the hearing) filed a defence on 18 March 2009.
4 It was not disputed that the parties were in a de facto relationship from May to September 2005, and from June 2006 to July 2007, being for a total period of about 18 months. It will be appreciated that that period is less than the period of two years referred to in section 17 (1) of the Act. However, since there is child of the parties to the application (being Thomas Gabrielle Hudspith Beltran, born in 2007), the Plaintiff can enliven the jurisdiction, conferred on the Court by section 17(2)(a) of the Property (Relationships) Act, to make an order of the nature claimed by the Plaintiff.
5 The Plaintiff (who was born in Spain in 1969 and is presently aged 40) arrived in Australia in 2003 on a two year employment contract as managing director of Ferrovia Airports. She held a working visa (referred to in the evidence as a "457 visa"). Subsequently, the Plaintiff studied for and was awarded the degree of Master of Business Administration (Executive) by the University of Sydney. The Plaintiff and the Defendant met in March 2004 and commenced a relationship shortly thereafter. In September 2004 they went on a holiday to Bali, which was paid for by the Defendant. At the time when they met the Defendant (who was born in 1976 and is presently aged 34) was employed as a shipwright.
6 Throughout the initial period of the de facto relationship, from May until September 2005, the parties resided in Spain.
7 At the time of the commencement of the de facto relationship the Plaintiff's assets consisted of:
Home unit in Madrid, Spain, having an estimated value of $800,000
Furniture, to which a value of $100,000 was ascribed.
Shares in publicly listed companies, having a value of $200,000.
8 The Plaintiff also had a superannuation entitlement in an amount which was not quantified in the evidence. Her only liability at that time was a mortgage on the home unit in Madrid, in an amount equivalent to about $300,000.
9 At that time the Defendant's assets consisted of a motorcar, to which he ascribed a value of $6,000; trade tools, having an estimated value of $5,000; and furniture, having an estimated value of $4,0000.
10 Throughout the entire period of their de facto relationship, and especially after she commenced employment as a fund manager with AMP in January 2006, the Plaintiff's income far exceeded that of the Defendant. For example, in the last year of the relationship (2006-2007) the Plaintiff received a salary of $215,000, together with a bonus of $200,000. The Defendant's total income for the entire period of the relationship (about 21 months) was $79,200.
11 While the parties resided in Spain during the first period of their de facto relationship in 2005, the Plaintiff paid all airfares and accommodation for the Defendant, and paid all his expenses. Essentially, that period in Spain was in the nature of a holiday for the Defendant. However, for a short period while he was in Europe, the Defendant was in employment, first, in Spain, and then (for a few weeks) in Italy.
12 The parties returned separately to Australia in December 2005. Later the Plaintiff again visited Spain, and in January 2006 she returned to Australia on what was referred to as "a de facto visa" (that having been, as I understand it, granted on account of her status as the de facto partner of the Defendant). From June 2006 until January 2007, the parties resided in rented accommodation at Paddington. They then removed to rented accommodation at Rushcutters Bay, where they remained until April 2007. In February 2007, their son Thomas was born.
13 The parties purchased the Vaucluse property in early 2007, that purchase settling in April of that year, and the parties thereupon entered into residence in that property. The de facto relationship between the parties terminated in July 2007.
14 The Vaucluse property was purchased for the sum of $1,350,000, plus stamp duty, plus costs. That purchase was funded as follows,
Plaintiff's savings $250,000
Plaintiff's bonus from employment $100,000
Plaintiff's additional mortgage upon
her residential unit in Madrid $100,000
Mortgage from Commonwealth Bank of Australia,
in joint names of Plaintiff and Defendant $1,000,000.
15 In addition, the Defendant was entitled to a first home owner's grant of $7,000, which he contributed towards the purchase price, as well as a cash contribution in an amount asserted by him to have been about $15,000.
16 The Vaucluse property was purchased by the parties as tenants in common in unequal shares, the Plaintiff as to an 80 percent share therein and the Defendant as to a 20 percent share therein.
17 From the time of its purchase the Plaintiff made repayments upon the mortgage loan in respect to the Vaucluse property, those repayments being in amount of $7000 a month.
18 Throughout the relationship the household outgoings and expenses of the parties were essentially paid by the Plaintiff. In about January 2007 the Defendant started making some contributions to their living expenses by way of direct transfer from his bank account. He said that he also made cash payments of about $4000-$5000 towards household and living expenses.
19 At the termination of the relationship in July 2007, the Plaintiff had the following assets.
80 percent interest in the Vaucluse property $1,080,0000
Home unit in Madrid $700,000
20 percent interest in a flat in Spain $100,000
Volkswagen motor vehicle $40,000
Furniture, in an unquantified amount
Superannuation, in an unquantified amount
20 The Plaintiff's liabilities at that time were:
80 percent of the mortgage secured over the Vaucluse property, in an estimated amount of $800,000
Mortgage secured over home unit in Spain $400,000
21 At the time of the termination of the relationship, the Defendant had the following assets:
20 percent interest in the Vaucluse property $270,000
Motor vehicle, to which he ascribed a value of $30,000
Furniture, having an unquantified value
Trade tools, having an estimated value of $5,000.
22 The Defendant had the following liabilities at that time:
20 percent of the mortgage secured over
the Vaucluse property $200,000
Personal loan $25,000
23 The Defendant did not dispute that the direct and indirect financial contributions of the Plaintiff to the relationship far exceeded such contributions made by the Defendant. However, the Defendant asserted that he made significant contributions to the relationship as homemaker and parent, especially after the birth of Thomas. The extent of the respective contributions of each party as homemaker and parent was in issue between them.
24 Further, it was asserted by the Defendant that it was only on account of his participation in the purchase of the property as an Australian resident that the parties were entitled to obtain a mortgage from the Bank, and that the Plaintiff, as a non-resident at the time of that purchase, would not, alone, have been able to have obtained such a mortgage. There was evidence given concerning the circumstances in which the parties eventually agreed to the Defendant having a 20 percent interest in the Vaucluse property. It would appear that the Plaintiff originally desired that the Defendant's interest therein should not exceed 10 percent.
25 There was a considerable amount of evidence presented concerning the alleged drug taking activities of the parties, especially of the Defendant, from the time when the parties met. I consider that evidence to be totally irrelevant to the matters which I must decide in the present proceedings. Similarly, I consider the Defendant's cyclical vomiting syndrome (asserted by the Plaintiff, but denied by the Defendant, to have been triggered by his drug taking) to be irrelevant to the outcome of the present proceedings.
26 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff. I have had the benefit of receiving a written outline of submissions and a chronology from Senior Counsel for the Plaintiff. Those documents will be retained in the Court file.
27 The jurisdiction invoked by the Plaintiff in the present proceedings is founded upon section 20 of the Property (Relationships) Act, subsection (1) whereof provides: