Damberg v Damberg (No 2) [2001] NSWCA 433

New South Wales Court of Appeal

CITATION : Damberg v Damberg (No 2) [2001] NSWCA 433 FILE NUMBER(S) : CA 40636/99 HEARING DATE(S) : Decided on written submissions JUDGMENT DATE : 29 November 2001

Wilfried Robert Damberg (Appellant) PARTIES : Bruenhild Damberg (First Respondent) Oliver Damberg (Second Respondent) Nicole Damberg (Third Respodnent) JUDGMENT OF : Spigelman CJ at 1; Sheller JA at 2; Heydon JA at 3

LOWER COURT JURISDICTION : Family Court of Australia LOWER COURT PA 4703/98 FILE NUMBER(S) : LOWER COURT Purdy J JUDICIAL OFFICER :

COUNSEL : Campbell Paton & Taylor (Appellant) SOLICITORS : Wilson Fardell & Moore (First Respondent) Garden & Montgomerie (Second and Third Respondents)

DECISION : See paragraph 27

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40636/99 PA 4703/98

SPIGELMAN CJ SHELLER JA HEYDON JA

29 November 2001

DAMBERG v DAMBERG & Ors (No 2) JUDGMENT

1 SPIGELMAN CJ: I agree with Heydon JA. 2 SHELLER JA: I agree with Heydon JA. 3 HEYDON JA: The Appellant was the husband of the First Respondent and is the father of the Second Respondent and the Third Respondent, these children being respectively the son and the daughter of the marriage between the Appellant and the First Respondent. At trial the Family Court of Australia (Purdy J) ordered the Appellant and the First Respondent to pay monies to the Second Respondent and to the Third Respondent. The basis of the orders was largely that loans had been made by the children to their parents but not repaid. Reasons for judgment in this appeal were published on 25 May 2001. In essence it was decided that the appeal should be allowed. Seven orders were made. By Order 7, the Appellant and the Second and Third Respondents were ordered to file in the Registry within seven days consent orders for the repayment by the Second Respondent or the Third Respondent to the Appellant of any part of the sums ordered by Orders 1 and 2 of Purdy J to be paid. In default of agreement, the Appellant and the Second and Third Respondents were to file within fourteen days written submissions setting out the orders for repayment contended for and why they should be made. No agreement was reached pursuant to the first part of the order. Written submissions were received pursuant to the second part of the order. Those of the Second and Third Respondents were dated 8 June 2001. Those of the Appellant were dated 14 June 2001. These submissions went beyond the issue of repayment, and it is convenient to deal first with the topics which are separate from that issue.