JOHNSON v BUDERUS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL POWELL, COLE and STEIN JJA 18 March 1998, 18 March 1998 [1998] NSWCA 118 Appeals and New Trial — Discretionary Judgment — Interference with — Grounds for — Whether made out Family Law — Maintenance and property — De facto relationship — Adjustment of property interests Powell JA This is an appeal from Orders made on 25 March and | April 1997 by Master McLaughlin in proceedings which had been brought by the Respondent seeking relief pursuant to the provisions of s20 of the De Facto Relationships Act 1984 ("the Act'). So far as is relevant for the purposes of this appeal, the first of the Master's Orders required the Appellant to pay to the Respondent, within a period of two months, the sum of $50,000, the payment of that sum to be charged upon a residential property at 171 Park Street Helensburgh ("the Helensburgh property') of which the Appellant was registered as proprietor and further required the Appellant, in the event of non-payment of that sum within the time limited by the Master, to submit the property for sale at auction and to pay to the Respondent out of the proceeds of sale, the sum of $50,000. The second of the Master's Orders required the Appellant to pay the Respondent's costs of the hearing before him, such costs to be assessed on an indemnity basis. By her Notice of Appeal and the Amended Notice of Appeal, which was filed, today, by leave, the Appellant seeks to have the Master's Orders set aside and seeks, in lieu thereof, a Declaration, or Order, to the effect that the Respondent's interests in the Helensburgh property, or in the proceeds of sale of that property, be limited to a sum of $13,000, together with an Order providing for the costs of the hearing at first instance and of the appeal. What is in issue on the appeal is, thus, at most, a sum of $37,000 together with the parties' costs of the hearing at first instance and of the appeal. Given the comparatively small amount at issue between the parties, it is greatly to be regretted that the proceedings at first instance occupied some five hearing days and have led to the production of five appeal books comprising in excess of 1,250 pages of which, astonishingly, 1,200 pages, or thereabouts, represent documentary exhibits tendered on the hearing at first instance. However while, in such a case as this is, such an appalling waste of the parties' time and energy and of the costs involved is greatly to be regretted, it is hardly surprising, as my experience as a trial judge in such makers, over a long period, long ago taught me that when emotion came in the door, reason flew out through the window. If further proof of this be thought necessary, I record that, in her original Notice of Appeal, the Appellant sought to raise some thirty-nine grounds of appeal, a fact which leads me to observe that the greater the number of grounds 2 UNREPORTED JUDGMENTS of appeal taken by an Appellant, the more likely it is - as it is, in my view, in this case - that the appeal will be found to be wanting in any merit whatsoever. The case which the Respondent. who is now aged sixty-one years, sought to advance before the Master - which case, at least in its broad outlines, the Master accepted in its entirety - was that he and the Appellant, who is now aged fifty-six years, lived together in a de facto relationship for about twelve years from 1980 to the latter part of 1992 and that, during that period, he, the Respondent, made contributions - both financial and otherwise - to the acquisition, improvement and maintenance of the appellant's property and in particular the Helensburgh property and as well made contributions, both financial and otherwise, to what might be called the relationship and the maintenance of the "matrimonial" household. In the judgment which he delivered on 18 March 1997 - to which judgment, it is clear that he devoted a great deal of care and thought - the Master, having first given a brief outline of the history of the parties' relationship, then (AB 1255) recorded, in the following terms, the issues which he considered he was called upon to determine:- "The essential matters in issue which I must decide in these proceedings are the following Firstly, the financial contributions by the plaintiff toward the improvements to the Helensburgh property (this will require findings concerning the income of the lawn mowing business). Secondly, the nonfinancial contributions by the plaintiff toward the improvements to the Helensburgh property (this will require findings concerning the nature and extent of the physical work performed by the plaintiff on that property). Thirdly, the effect of the Acknowledgment, both as to the entitlement of the plaintiff to receive any payment from the defendant and as to the effect of that document upon the present claim of the plaintiff for adjustment of the interests of the parties and property. Fourthly, the entitlement for various chattels which the plaintiff asserts he left upon the Helensburgh property at the time of his departure, and which, according to him, the defendant has refused to allow him to retrieve." Having thus recorded the issues which he felt called upon to determine, the Master then proceeded (inter alia) as follows (AB 1255-1256):- "Tt will be appreciated that in respect to many of the foregoing matters, the only evidence consists of assertions by the plaintiff and denials of those assertions by the defendant. It is appropriate, therefore, that I should express my views concerning the credit of the plaintiff and the defendant. I regarded the defendant as an entirely unsatisfactory witness. Under cross-examination she was evasive concerning her activities as bookkeeper of the lawn mowing business. The eventual conclusion I reached was that she was a totally unreliable witness, whose evidence was entirely discredited. She was prepared to give any answer under cross-examination which she thought would help her case, without regard to truth or accuracy. She was a witness who was prepared to say anything. She was constantly evasive in her responses to questions. Whilst on occasion the plaintiff may have been at fault in his recollection and there may have been inaccuracies in details of his evidence, I do not consider that he was attempting deliberately to mislead the court. That is in contrast of my opinion of the evidence of the defendant. Where the evidence of the plaintiff and URJ JOHNSON v BUDERUS (Powell JA) 3 the defendant conflicts, and there is no other evidence (oral or documentary) available regarding the issues, I accept the evidence of the plaintiff and reject that of the defendant." Given these findings by the Master, it is inevitable that all those grounds of appeal which challenged the Master's findings of fact as to the contributions made by the Respondent to the acquisition, improvement and maintenance of the parties' property, or to the relationship, must fail (see Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1992-1993) 177 CLR 472). What one is then left with is a challenge to a discretionary judgment made by the Master pursuant to the provisions of s20 of the Act. This being so, the challenge, if it is to be made good, must be brought within the principles which can be found shortly stated in the well known passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936 (55 CLR 499, 504-505) which passage is in the following terms:- "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for him if it has materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." Reduced to their most simple form, the submissions, in this respect, advanced by Miss Lydiard, who appeared for the Appellant, today, as she did before the Master, appeared at first to be three, they being:- 1. that given the terms of a document called "Acknowledgment" (Exhibit 3 AB p1044) which had been executed by the Appellant and the Respondent at about the time when the Appellant acquired the Helensburgh property, it was impermissible for the Master to have regard to any matter allegedly leading to the improvement or maintenance of the property - a submission which, although tentatively advanced, appears not now to be persevered with; 2. that, in the course of his judgment, the Master did not have regard to, or, perhaps, if having regard to, did not give adequate weight to, various aspects of what were said to be the contributions made by the Appellant and to the financial circumstances, or resources, of the parties; 3. that, in any event, it was clear beyond demonstration that the Order which had been made by the Master was one which was wholly beyond the permissible limits and, therefore, it was unjust and inequitable and should never have been made. So far as the first of the two matters which have been persevered with is concerned, I can but say that, upon a fair reading of the Master's judgment, it appears clear to me that, when he came to make his decision in the matter, the 4 UNREPORTED JUDGMENTS Master was well and truly aware of, and bore in mind, the various matters to which Miss Lydiard has sought to draw attention during the course of her submissions. That being so, it seems to me that this attack on the Master's Order must fail. So far as the final attack on the Master's decision is concerned, I say merely that it is clear that the Master had regard to at least three matters, they being, first, the rights to which the Respondent was entitled pursuant to the Acknowledgment to which I have referred, which rights, at the time of the hearing before the Master had a minimum value of $13,000; second, the monetary contributions made by the Respondent from the lawn mowing business, which contributions the Master accepted as being of the order of $25,000, and which contributions, it was accepted, went toward the improvement of the property; and finally, the non-monetary contributions in the form of work and labour which the Respondent had contributed toward the maintenance and improvement of the property which sum, it is clear, the Master rounded off in a sum of $12,000; thus making up the total of $50,000 which represents the order which the Master finally made. Iam far from persuaded that that was a grossly excessive sum. On the contrary it seems to me that it was an eminently reasonable sum to be awarded in the circumstances. The final ground of appeal taken by the Appellant related to the order for indemnity costs which was made by the Master on | April 1997. No material has been placed before us on behalf of the Appellant which would persuade me that, in making the order for indemnity costs, the Master's discretion miscarried; on the contrary, from such little information as we have before us, it would appear that the basis for the Master making that Order was an offer of compromise which had earlier been made by the Respondent. This attack on the Master's second order in my view should be rejected. In the circumstances I would propose that the appeal be dismissed with costs. Cole JA I agree. Stein JA I also agree. Powell JA And that is the order of the Court. Appeal dismissed with costs. Counsel for the appellant: Ms V J Lydiard Solicitors for the appellant: K J Minotti & Co (Bondi Junction) Counsel for the respondent: R M Schonell Solicitors for the respondent: Willis & Bowering (Miranda)