MOORE v CURETON [2002] NSWCA 188

Reported Decision : (2002) DFC 95-257

New South Wales Court of Appeal

CITATION : MOORE v CURETON [2002] NSWCA 188 FILE NUMBER(S) : CA 41020/01 HEARING DATE(S) : 19/06/2002 JUDGMENT DATE : 19 June 2002

PARTIES : Jason Anthony MOORE v Joanne Nicole CURETON JUDGMENT OF : Meagher JA at 1-3; Foster AJA at 4-25; Ipp AJA at 26-28

LOWER COURT JURISDICTION : District Court LOWER COURT 3370/99 FILE NUMBER(S) : LOWER COURT Gamble DCAJ JUDICIAL OFFICER :

COUNSEL : P. Barham - Appellant P. Walsh - Respondent SOLICITORS : Stoikovitch Banfield - Appellant Anthony Ziade & Associates - Respondent CATCHWORDS : Appeal due to the amount awarded. LEGISLATION CITED : Property Relationships Act 1984 District Court Act DECISION : 1. Leavel to appeal grant.; 2. Matter to be remitted for re-hearing only on the cross-claim and only on evidence already led.; 3. Costs of application and appeal be awarded to the appellant.; 4. Respondent be granted a Certificate under the Suitors Fund Act if she be otherwise entitled.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41020/01 DC 3370/99 MEAGHER JA FOSTER AJA IPP AJA

WEDNESDAY, 19 JUNE, 2002 Jason Anthony MOORE v Joanne Nicole CURETON Judgment 1 MEAGHER JA: Unfortunately, I find myself unable to agree with the decision of Foster AJA. I have no doubt that Acting Judge Gamble fell into error and misconstrued s 17 of the Property Relationships Act 1984. I have no doubt that this failure on her Honour's part led her to fail to consider the claim which the present claimant has made but, nonetheless, despite all those errors I am of the view that the summons should be dismissed with costs. 2 I take this view for two reasons: firstly, because the amount involved sums relevantly to be so trivial. If the claimant Mr Moore obtained everything he really wanted he would be entitled to a verdict of something over $20,000; a victory which would be swallowed up by some costs order. Secondly, because there is no indication in any of the material before us that he was entitled to any verdict at all on his cross-claim, particularly as a large proportion of the amount which he is claiming against Ms Cureton represents sums of money expended on meat and vegetables consumed by the parties and in those circumstances I would dismiss the summons with costs.