SCOTT v BRIGGS [1991] NSWCA 243

SCOTT v BRIGGS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and MEAGHER JJA 17 August 1990, 27 March 1991

[1991] NSWCA 243

De facto relationships — claim for adjustment — just and equitable — value of activities of de facto husband as homemaker — pre-existing law of unjust enrichment not to confine wide statutory discretion Words and Phrases — "homemaker" DE FACTO RELATIONSHIPS — claim under De Facto Relationships Act 1984 — widow suffering from alcoholism unable to live alone or care for herself — divorced man invites her to resume former relationship and live with him in his home woman commences to do so — relationship continues for nearly eight years — Bryson J finds that the relationship provided loving support to the woman but involved diversion of her financial capital — orders under the Act that de facto husband repay $250,000 plus interest and costs — finds, additionally, relationship of influence and that the de facto husband has not rebutted presumption of misuse of funds held: (Allowing the appeal) (per Kirby P and Clarke JA; Meagher JA dissenting) (1) The result of the order made and the consequent adjustment of the property interests of the respective parties to the relationship was, having regard to the parties' assets and income, and the duration, nature and incidents of the relationship, manifestly unjust and inequitable, thereby authorising the Court of Appeal to set the orders aside; (2) Alternatively, the exercise of discretion at first instance miscarried by reason of errors of fact-finding upon which it was based; (3) The trial judge was right to decline to order the taking of accounts and to deal with the adjustment under the De Facto Relationships Act 1984 on the basis of the evidence before him; (4) The Court of Appeal should exercise the discretion which had miscarried under the Act and substitute its own orders under the Act for those made by the trial judge; (5) The appropriate order of adjustment in the circumstances was that the de facto husband should repay $122,000 to the de facto wife; (6) Such order would adequately take into account the financial benefits derived by the de facto husband from the relationship and the benefits derived for the welfare of the de facto wife from the activities of the de facto husband as homemaker; (7) Having regard to the order made under the Act, it was unnecessary to consider the operation of the pre-existing law of undue influence and the interpretation of the Act should not be confined by such law. WORDS and PHRASES — "homemaker". De Facto Relationships Act 1984, s19, s20.