Beltran v Hudspith [2011] NSWCA 178

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Beltran v Hudspith [2011] NSWCA 178 Hearing dates: 7 June 2011 Decision date: 05 July 2011 Before: McColl JA at [1]; Campbell JA at [2]; Tobias AJA at [3] Decision: 1. Appeal allowed; 2. Cross-appeal dismissed; 3. Set aside order (1) made by McLaughlin AsJ on 9 April 2010 and in lieu thereof order that on or before 19 August 2011 the respondent provide to the appellant, at the expense of the appellant, a transfer in registrable form of his 20 per cent interest as tenant in common in the Vaucluse property to the intent that upon registration of that transfer the appellant will then be the sole registered proprietor of that property; 4. At the time of provision of the transfer of the respondent's interest in the Vaucluse property referred to in the preceding order, the appellant shall: (a) pay to the respondent the sum of $30,000; (b) provide to the respondent an executed Deed of Indemnity in favour of the respondent whereby she indemnifies the respondent against any obligation imposed upon him under the mortgage held by the Commonwealth Bank of Australia as security over the Vaucluse property and against any claim by the said Bank against the respondent with respect to either the principal or interest payable on the loan so secured by that mortgage; 5. The appellant shall use her best endeavours to have the respondent released by the Commonwealth Bank of Australia from his liability under the said mortgage; 6. Each party is to pay his or her own costs of the appeal; 7. Liberty to either party to apply to vary the terms of orders (4(b)) and (5) above but only within 14 days of the date the orders are made. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: FAMILY LAW - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - Property (Relationships) Act 1984 (NSW), ss 19 and 20 - whether order of the trial judge for adjustment was just and equitable - trial judge erred in failing to consider evidence concerning matters occurring after the termination of the relationship up to the date of trial - trial judge erred in failing to have regard to s 19 - discretion re-examined - appeal allowed Legislation Cited: Property (Relationships) Act 1984 Cases Cited: Hayes v Marquis [2008] NSWCA 10 Manns v Kennedy [2007] NSWCA 217 Category: Principal judgment Parties: Maria Del Mar Nunez Beltran (Appellant) James Robert Hudspith (Respondent) Representation: Counsel: A W Street SC (Appellant) In person (Respondent) Solicitors: Garland Hawthorn Brahe (Appellant) In person (Respondent) File Number(s): 2009/287553 Decision under appeal Citation: Beltran v Hudspith [2010] NSWSC 264 Date of Decision: 2010-04-09 00:00:00 Before: McLaughlin AsJ File Number(s): SC 1514 of 2009