Friday 11 October 2002
WALLIS V. MATHESON
Judgment
1 HODGSON JA: On 22 October 2001, Master McLaughlin made orders in proceedings brought by the respondent Jacqueline Sarah Matheson against the appellant Leigh Wallis under the Property (Relationships) Act 1984, the principal orders being to the effect that the respondent transfer to the appellant, subject to encumbrances, the property 90 Wolfe Street Newcastle, that the appellant pay the respondent $198,525.00, that the respondent deliver up to the appellant certain chattels, and that each party bear its own costs of the proceedings. The appellant appeals to this Court from that decision.
2 I will begin with an outline of circumstances.
3 The appellant was born in 1951, has been married twice, and has also been in one other de facto relationship. The respondent was born in 1961 and has never married. The parties began going out socially in 1983, and a sexual relationship commenced shortly thereafter, although the parties continued to live separately for various periods until 1992.
4 At the time of the commencement of the relationship, the respondent was employed as an industrial chemist, and the appellant was a journalist.
5 In April 1992, they entered into residence together in a property 315 Lambton Road, New Lambton, which had been acquired by the respondent earlier that year. They decided to start a family, and subsequently had two children, one born in 1993 and the other born in 1996. Master McLaughlin found, and this is not challenged, that a de facto relationship existed between the parties from April 1992 to November 1998.
6 The principal assets of the parties comprised a number of properties.
7 There were properties purchased in the name of the respondent. Firstly, a property 18 Alfred Street, Newcastle East, purchased in September 1985 for $51,000, subject to a mortgage of about $45,000. Secondly, a property 3/62 Selwyn Street, Merewether, purchased in January 1989 for about $39,850, subject to a mortgage for the entire amount. Thirdly, a property 315 Lambton Road, New Lambton, purchased in March 1992 for $105,000 subject to a mortgage for the entire amount. And fourthly, a property 90 Wolfe Street, Newcastle, purchased in September 1998 for $220,000, subject to a mortgage for the entire amount.
8 At the time of the commencement of the acquaintance of the parties, the appellant was the owner of a house property in Porter Street, Adelaide, which was sold in about 1987 for $116,000. At the commencement of the de facto relationship in April 1992, the following properties were owned in the name of the defendant: 8 Parish Street, Cooks Hill, purchased in October 1980 for $32,000, of which $15,000 was borrowed from a building society; 10 Parnell Street, Newcastle East, purchased in December 1983 for $35,000, of which $30,000 was borrowed from a building society; 96 Booral Street, Cooks Hill, purchased in August 1987 for $51,000, of which $46,000 was borrowed from a bank; portion 71 Belburra via Gloucester, a rural property purchased in October 1987 for $70,000, the whole purchase price being borrowed from a bank; 72 Booral Street, Cooks Hill, purchased in February 1989 for $96,000, the whole purchase price being borrowed from a bank; and 136 Grandview Road, New Lambton Heights, purchased in March 1992 for $176,000, the entirety of the purchase price being borrowed from a bank.
9 The practice of the parties was to effect renovations and improvements to the properties that they acquired, and to rent properties other than those occupied by themselves.
10 There was no specific finding by the master as to the equity in the various properties at the time of the commencement of the de facto relationship, or at the time of the termination of the relationship. And it seems to be common ground on the appeal that the Master did not have material before him that would have enabled him to make those findings. However the Master did find that, at the time of the hearing, the total net value of the various items of real property was $924,500.
11 The Master held that the physical contributions to renovations and improvements of the property made by the appellant were greater than those made by the respondent. He held that the respondent made contributions to the joint living expenses of the parties, particularly before the birth of the first child. He noted also that, at the time the respondent ceased employment, she received a redundancy payment of $90,000, which was applied towards the living expenses and/or assets of the parties. However, he held that the main contributions to the relationship and the assets of the parties made by the respondent from mid 1993 were as a homemaker and parent.
12 He concluded that it was appropriate to equate the contributions of the respondent as a homemaker and parent during the de facto relationship with the contributions of the appellant to the acquisition and improvement of the properties. He considered that the contributions of the appellant during the period 1983 to April 1992 were somewhat greater than those of the respondent. He considered that the contributions of the appellant to the maintenance of the children after the termination of the de facto relationship were not contributions to be taken into account under s.20(1)(b) of the Property (Relationships) Act.
13 In the result, the Master considered it appropriate to make an order as to the division of the property of the two parties which would have the effect of giving the respondent 45 per cent of the total value of all the properties and the appellant 55 per cent of the total value of those properties. It seems to be common ground that the orders actually made by the Master gave effect to those proportions.
14 The appellant appeals to this Court on the following grounds:
1. The Master erred in finding (as he did at paragraph 84 of his Judgment) that the defendant at the time of the commencement of the relationship was the owner of seven pieces of real property which had purchase prices totalling $428,000.00 when the correct addition of the prices (as found by the Court at paragraph 49 of the judgment) is $460,000.00.