FOTHERINGHAM V FOTHERINGHAM [1998] NSWCA 83

FOTHERINGHAM V FOTHERINGHAM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, BEAZLEY and STEIN JJA 20 March 1998, 28 August 1998

[1998] NSWCA 83

Appeal and New Trial — Discretionary Judgment — Interference with — Grounds for — Whether made out

Costs — Departing from general rule — Indemnity costs — Offer of compromise — Indemnity costs order made at trial — Relevance on appeal

Family Law — Maintenance and property — De facto relationship — Duration of relationship — Adjustment of property interests

Powell JA This is an appeal from a Judgment delivered, and Orders made, by Master Macready on 19 December 1996 in proceedings which had been brought by the Respondent ostensibly seeking relief pursuant to the provisions of the De Facto Relationships Act 1984 ("the Act"). I say that the proceedings ostensibly sought relief pursuant to the provisions of the Act for, although what passed for a Statement of Claim filed on behalf of the Respondent was entitled "De Facto Relationships Act 1984", the relief sought in that Statement of Claim included Orders - as, for example, varying a Caveat, extending the operation of a Caveat, "damages for unjust enrichment", and a Declaration that the Appellant held his interest in a property at Dunks Lane, Jilliby ("the subject property") in trust for the Appellant and the Respondent in the proportions 1:3 - which, although it was open to the Court to grant pursuant to the general law, it was not open to the Court to grant that relief pursuant to the provisions of s20 of the Act. In the event, however, that procedural aberration proved to be of little consequence as, prior to the matter coming on for hearing before the Master, Bryson J had made an order referring all matters in issue in the proceedings to the Master for determination (SCR 1970 Schedule D Pt3 r4).