Mason v Hamer [2001] NSWSC 802

Reported Decision : (2002) DFC 95-242

New South Wales Supreme Court

CITATION : Mason v Hamer [2001] NSWSC 802 revised - 13/11/2001 FILE NUMBER(S) : SC 11913/01 HEARING DATE(S) : 3 September 2001 JUDGMENT DATE : 13 September 2001

PARTIES : Mark Raymond Mason Dianne Patricia Hamer JUDGMENT OF : Sully J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FL004/08 FILE NUMBER(S) : LOWER COURT Stephen Jackson LCM JUDICIAL OFFICER :

COUNSEL : E. Cox - Plaintiff A. Henskens - Defendant SOLICITORS : Self- Plaintiff Berryman Partners - Defendant LEGISLATION CITED : Local Courts (Civil Claims) Act 1970 (NSW) Property (Relationships) Act 1984 (NSW) DECISION : Orders made by Local Court confirmed; Amended Summons dismissed with costs.

- 10 - IN THE SUPREME COURT OF NEW SOUTH WALES common law division

11913/01 SULLY J

Thursday September 13, 2001 Mark Raymond MASON v Dianne Patricia HAMER

JUDGMENT 1 HIS HONOUR: By an amended summons filed by leave in Court at the commencement of the hearing in this Court Mr. Mark Raymond Mason as plaintiff claims against Miss Dianne Patricia Hamer as defendant the following relief: "1. Leave to appeal from the whole of the judgment of the Local Court at Newcastle on 24 May 2001 be granted. 2. That the orders of the Local Court at Newcastle made on 24 May 2001 be set aside. 3. That judgment be entered in favour of the Plaintiff in the proceedings in the Local Court at Newcastle. 4. Costs. 5. Such order as this Honourable Court thinks fit." 2 The decision of the Local Court to which the amended summons refers was given in the exercise of a jurisdiction conferred upon the Local Court by the Local Courts (Civil Claims) Act 1970 (NSW). By reason of section 69 of that Act, all such judgments of a Local Court are final and conclusive with the one exception that a party who "is dissatisfied with the judgment or order of the court as being erroneous in point of law, may appeal to the Supreme Court therefrom". 3 Three particular grounds of appeal were notified in compliance with the requirements of SCR Part 51B Rule 8. They are: "1. That the Magistrate erred in inferring that the Defendant contributed in excess of $40,000.00 to the Plaintiff's Bolwarra property, such inference being neither supported by any evidence nor open on the evidence. 2. That the Magistrate erred in assessing the Plaintiff's contributions by reference to only his economic contribution, and failed to have regard to the Plaintiff's non-financial contributions to the property and relationship. 3. That the Magistrate erred in failing to pay regard to s 19 of the Property Relationships Act 1984 (NSW) in that the orders made impose a continuing financial relationship on the parties." 4 The judgment given in the Local Court was given in proceedings in which Miss Hamer claimed against Mr. Mason relief pursuant to the Property (Relationships) Act 1984 (NSW). The objects of that Act, as described in the long title to the Act, are the making of "provision with respect to the rights and obligations of persons in certain domestic relationships". At all material times Mr. Mason and Miss Hamer were living in what used to be described conventionally as a de facto relationship. Such a relationship comes within the purview of the Act. 5 Section 3 of the Act, the definitions section, includes the following definitions which are of particular relevance for present purposes: " financial resources, in relation to parties to a domestic relationship, or either of them, includes: (a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided, (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties to the relationship or either of them, (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and (d) any other valuable benefit. Property , in relation to parties to a domestic relationship or either of them, includes real and personal property and any estate or interest (whether a present, future or contingent estate or interest) in real or personal property, and money, and any debt, and any cause of action for damages (including damages for personal injury), and any other chose in action, and any right with respect to property." 6 Also relevant for present purposes are the provisions of sections 19 and 20 of the Act. 7 Section 19 provides: " 19 Duty of Court to end financial relationships In proceedings for an order under this Part, a court shall, so far as is practicable, make such orders as will finally determine the financial relationships between the parties to a domestic relationship and avoid further proceedings between them." 8 Section 20 provides, relevantly: " 20 Application for adjustment (1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely: (i) a child of the parties,"