Jensen v Pearce [2013] NSWCA 247

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Jensen v Pearce [2013] NSWCA 247 Hearing dates: 22 July 2013 Decision date: 05 August 2013 Before: Basten JA at [1]; Barrett JA at [65]; Emmett JA at [66] Decision: (1) Deem the notice of appeal to have been properly served on 6 June 2012 and, to the extent necessary, extend time for the commencement of the appeal to that date. (2) Allow the appeal and set aside the orders made in the District Court at Coffs Harbour on 28 March 2012. (3) Declare that the parties were in a domestic relationship for the purposes of the Property (Relationships) Act 1984 from February 2002 until August 2006. (4) In place of the orders made in the District Court, make the following orders to take effect from the date of this judgment: (a) judgment for the appellant against the respondent in the sum of $13,000; (b) order that the respondent take all steps and sign all necessary documents to transfer to the appellant all her right, title and interest in the property known as 43 Pullen Street, Woolgoolga, New South Wales, being the land comprised in folio identifier 91/1100962; (c) the plaintiff give vacant possession to the appellant of the property at 43 Pullen Street, Woolgoolga within two months of the date of this judgment; (d) in the event that the respondent fails to comply with the terms of order (2)(b), appoint the officer in charge of the registry of the District Court at Coffs Harbour to execute any deed or instrument in the name of the respondent and do all acts and things necessary to effect the transfer of the respondent's interest in the property at 43 Pullen Street, Woolgoolga, pursuant to s 39 of the Property (Relationships) Act 1984; (e) in the event that the respondent fails to provide vacant possession within two months of the date of this judgment, give leave to the appellant to seek the issue of a writ of possession with respect to the property. (5) Direct that the respondent file written submissions, if she so wishes, with respect to the costs of the trial, within 14 days, absent which, order that the plaintiff pay the defendant's costs of the trial. (6) Each party to bear its own costs of the appeal. (7) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to her costs of the appeal. [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 relationships - adjustment of property interests - whether adjustment with respect to the property of the parties was just and equitable - proper approach to determining claims - appellant owned property in Sweden - jointly owned property in NSW - whether respondent should be credited for first home owners' grant and stamp duty exemption - appropriate credit for contribution to increase in value of properties - indirect contributions to properties in Sweden and NSW - adjustment for occupation fee - Property (Relationships) Act 1984 (NSW), s 20