Jensen v Ray [2011] NSWCA 247

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Jensen v Ray [2011] NSWCA 247 Hearing dates: 17 March 2011 Decision date: 01 September 2011 Before: Campbell JA, Sackville AJA and Brereton J Decision: 1. Order that the appeal be allowed. 2. Order that the orders made by the District Court on 25 February 2010 be set aside, and in lieu thereof: 2.1 Order pursuant to (NSW) Property (Relationships) Act, s 20, by way of adjustment of property interests, that the property situate at and known as 21 St Elmo Street, Blackheath be sold in accordance with the provisions of the Schedule ("the Sale") and the proceeds applied as follows: (1) First, in payment of all costs and expenses of the Sale, including legal costs and disbursements, agent's commission, and auction fees, including reimbursement to the defendant of any amount she may be required to advance for advertising; (2) Secondly, in payment of any outstanding Council and Water Rates; (3) Thirdly, to discharge of the mortgage to St George Bank Limited; (4) Fourthly, in payment to the plaintiff of $22,000; (5) Fifthly, in distribution of the residue, as to 91% thereof plus $3,590 to the defendant, and the balance to the plaintiff; and that each of the parties otherwise be and remain entitled to the exclusion of the other to all personal property now in that respective party's possession or name. 2.2 Order that the defendant pay the plaintiff's costs, fixed in the sum of $15,000. 3. Order that the respondent pay the appellant's costs of the appeal, and that the respondent if otherwise qualified be granted an indemnity certificate under the Suitors Fund Act, s 6. Catchwords: APPEAL - Appeal from judgment of District Court in Property (Relationships) Act 1984 (NSW) s 20 matter - appeal as of right restricted to matter at issue amounting to $100,000 or more, or claim demand or question amounting to $100,000 or more - value of matter at issue determined by whether realistic prospect of changing wealth of party by at least $100,000. FAMILY LAW - de facto relationships - property - division of assets and adjustment of interests - contributions - failure to apply ratio of contribution of the parties to the net assets - whether open to allocate no property to partner found to have made 40% of contributions - balancing initial and ongoing contributions - treatment of tax debt in calculating liabilities incurred during relationship - both parties to relationship receive benefits of unpaid tax - tax debt treated as liability to be borne by divisible property - duty to finally determine financial relationships between the parties under Property (Relationships) Act 1984 (NSW), s 19 - judge at first instance left party with rights to recover contribution for mortgage debt against other - practicable to end parties' financial relationship - evaluation of contributions of parties fails to correctly assess initial contribution - ongoing contributions weighed with initial contribution result in just and equitable apportionment of totality of contributions of 80:20 in favour of respondent. COSTS - Appeal substantially successful - costs of proceedings at first instance - starting point that costs should follow the event in de facto relationship cases unless court adjusts interests of parties of a value or amount not in excess of jurisdictional limit of Local Court - costs for first instance proceedings should be proportionate to adjustment of interests in context of amount in issue. Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 District Court Act 1973 (NSW), s 127, s 134 Judiciary Act 1903 (Cth), s 35 Local Court Act 2007 (NSW), s 29 Property Relationships Act 1984 (NSW), s 19, s 20 Suitors Fund Act 1951 (NSW), s 6 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 42.30, r 51.22, r 51.41 Cases Cited: Aroona Developments Pty Ltd (In Liq) v Killen (2004) 50 ACSR 668 Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114 Bilous v Mudaliar [2006] NSWCA 38; (2006) 65 NSWLR 615 Dunn v Ross Lamb Motors and Another [1978] 1 NSWLR 26 Dunstan v Rickwood (No 2) [2007] NSWCA 266; (2007) 38 Fam LR 491 Gillard v Hunter Wire Products Pty Ltd (No 2) [2001] NSWCA 450 In the Marriage of LA and EA Pierce (1998) 24 Fam LR 377 Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550 Kardos v Sarbutt (No 2) [2006] NSWCA 206 Moller v Roy (1975) 132 CLR 622 Muldoon v Church of England Homes [2011] NSWCA 46 Pegela Pty Ltd v Oates [2010] NSWCA 186 Peter Hansen v Slattery Transport (NSW) Pty Ltd [2011] NSWCA 193 Sharpless v McKibbin [2007] NSWSC 1498; (2008) DFC 95-414 Trustee of the property of G Lemnos (a bankrupt) v Lemnos (2009) 41 Fam LR 120 Vitali v Stachnik [2001] NSWSC 408; (2001) DFC 95-235 Category: Principal judgment Parties: Stefan Jensen (appellant) Rhonda Ann Bernadette Ray (respondent) Representation: Counsel: D Alexander (appellant) P Menadue (respondent) Solicitors: Benetatos White (appellant) A J Law & Co (respondent) File Number(s): 2010/78137 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-02-25 00:00:00 Before: Delaney DCJ File Number(s): 210/09