Beltran v Hudspith - [2011] NSWCA 178

Court of Appeal

New South Wales

Case Title: Beltran v Hudspith

Medium Neutral Citation: [2011] NSWCA 178

Hearing Date(s): 7 June 2011

Decision Date: 05 July 2011

Jurisdiction:

Before:
McColl JA at [1];
Campbell JA at [2];
Tobias AJA at [3]

Decision:
1. Appeal allowed;
2. Cross-appeal dismissed;
3. Set aside order (1) made by McLaughlin AsJ on 9 April 2010 and in lieu thereof order that on or before 19 August 2011 the respondent provide to the appellant, at the expense of the appellant, a transfer in registrable form of his 20 per cent interest as tenant in common in the Vaucluse property to the intent that upon registration of that transfer the appellant will then be the sole registered proprietor of that property;
4. At the time of provision of the transfer of the respondent's interest in the Vaucluse property referred to in the preceding order, the appellant shall:
(a) pay to the respondent the sum of $30,000;
(b) provide to the respondent an executed Deed of Indemnity in favour of the respondent whereby she indemnifies the respondent against any obligation imposed upon him under the mortgage held by the Commonwealth Bank of Australia as security over the Vaucluse property and against any claim by the said Bank against the respondent with respect to either the principal or interest payable on the loan so secured by that mortgage;
5. The appellant shall use her best endeavours to have the respondent released by the Commonwealth Bank of Australia from his liability under the said mortgage;
6. Each party is to pay his or her own costs of the appeal;
7. Liberty to either party to apply to vary the terms of orders (4(b)) and (5) above but only within 14 days of the date the orders are made.
[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 relationship - adjustment of interests of parties in property - respective contributions of parties - Property (Relationships) Act 1984 (NSW), ss 19 and 20 - whether order of the trial judge for adjustment was just and equitable - trial judge erred in failing to consider evidence concerning matters occurring after the termination of the relationship up to the date of trial - trial judge erred in failing to have regard to s 19 - discretion re-examined - appeal allowed

Legislation Cited:
Property (Relationships) Act 1984

Cases Cited:
Hayes v Marquis [2008] NSWCA 10
Manns v Kennedy [2007] NSWCA 217

Texts Cited:

Category: Principal judgment

Parties:
Maria Del Mar Nunez Beltran (Appellant)
James Robert Hudspith (Respondent)

Representation

- Counsel:
Counsel:
A W Street SC (Appellant)
In person (Respondent)

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.

Continue reading Beltran v Hudspith

Details

AGLC: Beltran v Hudspith [2011] NSWCA 178
Case: [2011] NSWCA 178
Decision Date: 05 July 2011

CaseChat Overview and Summary

In *Beltran v Hudspith*, the New South Wales Court of Appeal considered an appeal and cross-appeal concerning the adjustment of property interests between former de facto partners. The primary dispute revolved around the trial judge's orders for the division of property, specifically a Vaucluse property, following the termination of the parties' de facto relationship.

The legal issues before the Court of Appeal included whether the trial judge erred in failing to consider evidence of matters occurring after the termination of the de facto relationship up to the date of trial, and whether the trial judge failed to have regard to the provisions of section 19 of the *Property (Relationships) Act 1984* (NSW). The court was required to re-examine the exercise of discretion in making property adjustment orders to determine if they were just and equitable.

The Court of Appeal found that the trial judge had erred in failing to consider relevant evidence concerning post-separation events and in not properly applying section 19 of the Act. Consequently, the court allowed the appeal, set aside the original orders, and made new orders. These new orders provided for the appellant to receive the respondent's 20% interest in the Vaucluse property, subject to the appellant paying the respondent $30,000 and providing a deed of indemnity regarding the mortgage over the property. The appellant was also to use her best endeavours to have the respondent released from the mortgage liability. The cross-appeal was dismissed, and each party was ordered to bear their own costs of the appeal.

Orders

Orders of the court

1. Appeal allowed;

2. Cross-appeal dismissed;

3. Set aside order (1) made by McLaughlin AsJ on 9 April 2010 and in lieu thereof order that on or before 19 August 2011 the respondent provide to the appellant, at the expense of the appellant, a transfer in registrable form of his 20 per cent interest as tenant in common in the Vaucluse property to the intent that upon registration of that transfer the appellant will then be the sole registered proprietor of that property;

4. At the time of provision of the transfer of the respondent's interest in the Vaucluse property referred to in the preceding order, the appellant shall:

(a) pay to the respondent the sum of $30,000;

(b) provide to the respondent an executed Deed of Indemnity in favour of the respondent whereby she indemnifies the respondent against any obligation imposed upon him under the mortgage held by the Commonwealth Bank of Australia as security over the Vaucluse property and against any claim by the said Bank against the respondent with respect to either the principal or interest payable on the loan so secured by that mortgage;

5. The appellant shall use her best endeavours to have the respondent released by the Commonwealth Bank of Australia from his liability under the said mortgage;

6. Each party is to pay his or her own costs of the appeal;

7. Liberty to either party to apply to vary the terms of orders (4(b)) and (5) above but only within 14 days of the date the orders are made.

[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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Beltran v Hudspith
Medium Neutral Citation:	[2011] NSWCA 178
Hearing Date(s):	7 June 2011
Decision Date:	05 July 2011
Jurisdiction:
Before:	McColl JA at [1]; Campbell JA at [2]; Tobias AJA at [3]
Decision:	1. Appeal allowed; 2. Cross-appeal dismissed; 3. Set aside order (1) made by McLaughlin AsJ on 9 April 2010 and in lieu thereof order that on or before 19 August 2011 the respondent provide to the appellant, at the expense of the appellant, a transfer in registrable form of his 20 per cent interest as tenant in common in the Vaucluse property to the intent that upon registration of that transfer the appellant will then be the sole registered proprietor of that property; 4. At the time of provision of the transfer of the respondent's interest in the Vaucluse property referred to in the preceding order, the appellant shall: (a) pay to the respondent the sum of $30,000; (b) provide to the respondent an executed Deed of Indemnity in favour of the respondent whereby she indemnifies the respondent against any obligation imposed upon him under the mortgage held by the Commonwealth Bank of Australia as security over the Vaucluse property and against any claim by the said Bank against the respondent with respect to either the principal or interest payable on the loan so secured by that mortgage; 5. The appellant shall use her best endeavours to have the respondent released by the Commonwealth Bank of Australia from his liability under the said mortgage; 6. Each party is to pay his or her own costs of the appeal; 7. Liberty to either party to apply to vary the terms of orders (4(b)) and (5) above but only within 14 days of the date the orders are made. [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 relationship - adjustment of interests of parties in property - respective contributions of parties - Property (Relationships) Act 1984 (NSW), ss 19 and 20 - whether order of the trial judge for adjustment was just and equitable - trial judge erred in failing to consider evidence concerning matters occurring after the termination of the relationship up to the date of trial - trial judge erred in failing to have regard to s 19 - discretion re-examined - appeal allowed
Legislation Cited:	Property (Relationships) Act 1984
Cases Cited:	Hayes v Marquis [2008] NSWCA 10 Manns v Kennedy [2007] NSWCA 217
Texts Cited:
Category:	Principal judgment
Parties:	Maria Del Mar Nunez Beltran (Appellant) James Robert Hudspith (Respondent)
Representation
- Counsel:	Counsel: A W Street SC (Appellant) In person (Respondent)