KENNEDY v KENNEDY [1996] NSWCA 301

KENNEDY v KENNEDY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P, HANDLEY JA and POWELL JA 12 April 1996

[1996] NSWCA 301

The second appellant, the son of the first appellant, was the registered proprietor of a house. The respondent married the first appellant on 25 March 1991. He spent $8,738 on improvements to his stepson's house which had become the matrimonial home. In September 1991 the respondent paid $30,000 to discharge a mortgage on the house. On 28 March 1992 the respondent and first appellant separated. The trial judge ordered the stepson to pay the plaintiff/respondent $41,300 comprising $30,000 applied to pay off the mortgage, $4,500 for home improvements, and $6,800 for interest saved. The appellants appealed against the award for home improvements on the ground that no evidence had been led as to quantum, and the interest component.

HELD, allowing the appeal in part: (1) The Judge was entitled to approach the question of the value of home improvements as a jury would and to infer an amount from the facts, (2) A cause of action of this kind for restitution accrues when retention of the benefit becomes unconscionable: Muschinski v Dodds (1985) 160 CLR 583, (3) Interest should therefore be calculated from the date of the break-up of the relationship, not the date of the payments.

Handley JA. This is an appeal by the defendant from orders made following the break-up of the marriage between the defendant's mother and the respondent. The respondent married the defendant's mother in March 1991, but the marriage failed in March 1992.

The spouses had lived during their short marriage in a home at 55 Barrenjoey Road, Ettalong Beach, owned by the appellant who was the son of the wife, by a prior marriage. Following the break-up of the relationship, the respondent sought, in accordance with the principles established by Muschinski v Dodds (1985) 160 CLR 583 to recover from the stepson, the appellant, the value of benefits allegedly conferred on him by the respondent during the short marriage.