Antoinette Howard v Gregory Trosse

CITATION:	Antoinette Howard v Gregory Trosse [2008] NSWDC 328 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	29/10/08 - 31/10/08 and 01/12/08
JUDGMENT DATE:	5 December 2008
JURISDICTION:	Civil
JUDGMENT OF:	Rolfe DCJ
DECISION:	See paragraphs 47-49 of Judgment
CATCHWORDS:	Claims for adjustments of property pursuant to Property (Relationships) Act 1984 - Approach to be adopted, including allowance for indirect financial contribution in terms of salary foregone to establish and run joint business.
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Chanter v Catts (2005) NSW CA 411 Paino v Paino (2008) NSW CA 276 at 72 Vitali v Stachnik (2001) NSW SC 408 at 47
PARTIES:	Antoinette Howard (Plaintiff) Gregory Trosse (Defendant)
FILE NUMBER(S):	5119/07
COUNSEL:	T Hodgson (Plaintiff/Cross-Defendant) N Carney (Defendant/Cross-Claimant)

JUDGMENT

1 These proceedings concern applications by both the plaintiff and defendant for orders for adjustment of property pursuant to the provisions of s 20 of the Property (Relationships) Act 1984. The approach to be adopted by the Court in making an adjustment of property order in accordance with the Act involves the three steps identified by Hodgson JA in Chanter v Catts (2005) NSW CA 411. At paragraphs 2-25 his Honour stated that, essentially, the steps involved from the Court’s point of view were:

1. The identification and valuation of the property of the parties.

2. The identification and evaluation of the respective contributions of the parties of the types referred to in s 20 and

3. Having regard to the contributions, a determination of what order is just and equitable in the circumstances.

2 There is no doubt that the Court has a broad discretion in determining the approach in carrying out the three steps referred to. A global approach is quite permissible but, so too is an asset by asset approach. If the latter is adopted, care must be taken to avoid the risk of undermining any indirect financial contributions or any domestic and non-financial contributions because the outcome must be a just and equitable one, which has regard to all of the contributions identified in S 20.

3 The case was not without its difficulties because of the attitude of each of the parties, clearly demonstrated by each of them whilst giving evidence. In the case of the plaintiff, there was a thread running through her evidence that the defendant was to a large extent the cause of all of her woes. (In this regard the Court does not for one moment discount the plaintiff’s individual trials and tribulations and her medical history).

4 In the case of the defendant, he demonstrated an approach in the witness box of wanting to deny that the plaintiff made any contribution to their relationship. To use his own words, this was “because she left me”. The defendant was therefore prepared to say whatever needed to be said in order to enhance his prospects of defeating the plaintiff’s claim and succeeding with his own. The…