Cooper v Mulcahy Mulcahy v Cooper [2013] NSWCA 160

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cooper v Mulcahy Mulcahy v Cooper [2013] NSWCA 160 Hearing dates: 4 December 201211 April 2013 Decision date: 14 June 2013 Before: Basten JA at [1] Meagher JA at [2] Hoeben JA at [3] Decision: (1) Appeal allowed. (2) A declaration that the pool of assets for distribution between the parties is $1,405,782. (3) A declaration that each of the respondent's claims for damages for assault and/or battery as found by the primary judge is statute barred, save for the 2007 assault. (4) Quash the judgment in favour of the respondent on her cross-claim. (5) Enter judgment for the respondent on her cross-claim against the appellant in the amount of $4,000. (6) The respondent is to pay the appellant's costs of the appeal and of the cross-appeal and to have a certificate under the Suitors Fund Act 1951 if qualified. (7) The parties are to advise the Court within seven days of the date of judgment as to whether they have been able to agree as to the costs of the trial. (8) Direct that if the parties are unable to agree as to the costs of the trial: (a) Within seven days of the date of this judgment, the appellant lodge with the Court a submission identifying the costs order which he contends should be made, such submissions not to exceed two folios. (b) Within seven days thereafter the respondent is to lodge a reply, not to exceed two folios. (c) Within a further seven days, the appellant lodge any submission in reply to that of the respondent, not to exceed one folio. [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: Property (Relationships) Act 1984 (NSW) - Appeal against "add back" of monies into "asset pool" - cross-appeal against trial judge's refusal to order payment forthwith of the value of share of property after adjustment - contention that judgment in favour of respondent be affirmed on grounds other than those relied upon by trial judge - whether order for adjustment of property should be increased in respondent's favour - TORT - assaults and batteries during relationship - whether entitlement to damages - quantum of damages - whether entitlement to aggravated damages - whether capacity to manage home reduced by effects of assaults and batteries - LIMITATION - application of s52 of the Limitation Act 1969 - whether respondent subject to a relevant "disability" under section - whether assaults and batteries barred by Limitation Act - conflicting opinions of psychiatrists who gave evidence - whether conflict in medical material properly resolved - DAMAGES - whether evidentiary basis for damages awarded for past and future economic loss and past and future out-of-pocket expenses - assessment of damages for assaults and batteries - whether appropriate to award aggravated damages. Legislation Cited: Civil Procedure Act 2005 Limitation Act 1969 - s 52 Property (Relationships) Act 1984 (NSW) - s 20 Cases Cited: Aon Risk Services of Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Cooper v Mulcahy [2012] NSWSC 373 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Giller v Procopets [2008] VSCA 236 Guthrie v Spence [2009] NSWCA 369 In the Marriage of Kennon (1997) 22 Fam LR 1 Moylan v Nutrasweet Co [2000] NSWCA 337 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 Saunders and Anor v Jackson [2009] NSWCA 192 Varmedja v Varmedja [2007] NSWDC 385 Whitbread and Anor v Rail Corporation NSW and Ors [2011] NSWCA 130 Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 Category: Principal judgment Parties: Robert Brian Cooper - Appellant Barbara Alicja Mulcahy - Respondent