PARTIES: John Graham Baker (Appellant) Esma Fay Towle (Respondent)
JUDGMENT OF: Beazley JA Basten JA Mathews AJA
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 2250/05
LOWER COURT JUDICIAL OFFICER: McLaughlin AsJ
LOWER COURT DATE OF DECISION: 18 April 2007
LOWER COURT MEDIUM NEUTRAL CITATION: [<i>Esma Fay Towle v John Graham Baker</i>] [2007] NSWSC 357
COUNSEL: J Lloyd (Appellant) G A Rich (Respondent)
SOLICITORS: Donovan Oates Hannaford, Port Macquarie (Appellant) Flintoff McNeilly, Port Macquarie (Respondent)
CATCHWORDS: COSTS – costs follow the event – Uniform Civil Procedure Rules r 42.1 – where neither party wholly or substantially successful – proportionate costs DE FACTO RELATIONSHIPS – adjustment of interests in property – treatment of initial contributions to a relationship – [<i>Property (Relationships) Act</i>] 1984 s 20 WORDS & PHRASES – “the event”
LEGISLATION CITED: [<i>Civil Procedure Act</i>] 2005, s 98 [<i>Local Courts Act</i>] 1982 (NSW), s 4 [<i>Local Courts (Civil Claims) Act</i>] 1970 (NSW), s 12 [<i>Property (Relationships) Act</i>] 1984 (NSW), ss 4, 5, 20 [<i>Supreme Court Act</i>], s 76 Supreme Court Rules, Pt 52A, r 11 Uniform Civil Procedure Rules 2005, r 42.1, r 42.30
TEXTS CITED: Dal Pont, [<i>Law of Costs</i>] (1993) at [8.6]-[8.9]
DECISION: (1) Appeal allowed in part and orders 1, 2 and 5 made in the Equity Division on 19 June 2007 be set aside.[<br>] (2) In lieu thereof make the following orders:[<br>](a) upon tender by the respondent of the amount of $50,000, together with a discharge of the mortgage granted by the appellant and the respondent to the National Australia Bank with respect to the property at Yippen Creek, the appellant shall transfer to the respondent all his right, title and interest in the property at Yippen Creek;[<br>](b) in the event that the respondent does not tender the amount specified…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Baker v Towle [2008] NSWCA 73
Case
[2008] NSWCA 73
Decision Date
CaseChat Overview and Summary
The case of *Baker v Towle* concerned an appeal from orders made in the Equity Division of the Supreme Court of New South Wales. The dispute involved the adjustment of interests in property between parties to a de facto relationship, specifically concerning a property at Yippen Creek.
The legal issues before the Court of Appeal included the appropriate division of property under the *Property (Relationships) Act 1984* (NSW), particularly how initial contributions to the relationship should be treated. The court was also required to determine the incidence of costs, considering the principle that costs follow the event and the application of proportionate costs where neither party was wholly or substantially successful.
The Court of Appeal allowed the appeal in part, setting aside the original orders. The court ordered that upon the respondent paying $50,000 and providing a discharge of mortgage, the appellant would transfer his interest in the Yippen Creek property. Alternatively, if payment and discharge were not made within 90 days, the property was to be sold, with proceeds divided 11% to the appellant and the balance to the respondent. The appellant was also to ensure the respondent's release from a bank guarantee. Regarding costs, the appellant was ordered to pay two-thirds of the respondent's trial costs, and the respondent was ordered to pay 25% of the appellant's appeal costs, with the respondent granted a suitor's fund certificate for the appeal.
Orders
Orders of the court
(1) Appeal allowed in part and orders 1, 2 and 5 made in the Equity Division on 19 June 2007 be set aside. (2) In lieu thereof make the following orders: (a) upon tender by the respondent of the amount of $50,000, together with a discharge of the mortgage granted by the appellant and the respondent to the National Australia Bank with respect to the property at Yippen Creek, the appellant shall transfer to the respondent all his right, title and interest in the property at Yippen Creek; (b) in the event that the respondent does not tender the amount specified and the discharge of mortgage within 90 days of the date of this judgment, the parties are to sign all documents and take all steps necessary expeditiously and in good faith to sell the property at a fair market price; (c) the proceeds of sale, after payment of all necessary expenses, will be divided between the parties so that the appellant will receive 11% and the respondent the balance; (d) the appellant shall in any event take all necessary steps to ensure that the respondent obtains a release of the respondent's guarantee of the overdraft facility with the National Australia Bank. (3) The appellant is to pay the respondent two-thirds of her costs of the trial. (4) The respondent is to pay the appellant 25% of his costs of the appeal. (5) The respondent shall have a suitor's fund certificate in respect of the costs of the appeal.