Bilous v Mudaliar & 1 Or; Mudaliar v Bilous & 1 Or [2006] NSWCA 38 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
28/02/06
JUDGMENT DATE:
27 April 2006
JUDGMENT OF:
Giles JA at 1; Ipp JA at 2; McColl JA at 199
DECISION:
(1) The appeal is upheld with costs (2) The orders of White J are set aside (3) The first respondent is ordered to pay the appellant $228,000.00. (4) The first respondent is ordered to pay J & J Superannuation Pty Ltd, the trustee of the appellant's superannuation fund, $87,163.00 (5) The first respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified (6) The first respondent is ordered to pay the costs of the cross-appeal.
CATCHWORDS:
FAMILY LAW - de facto relationship - application under s 20 of the Property (Relationships) Act 1984 (NSW) for an adjustive property order - relationship of 11 years duration - substantial increase in assets over period of relationship - respondent primary income earner - exercise of jurisdiction under s 20 - whether trial judge erred in adopting an "asset-by-asset" approach - whether the "erosion principle" should be applied in cases under the Property (Relationships) Act - relevance of initial contributions - evaluation of non-financial contributions - whether notional rent should be deducted for rent free accommodation in the family home. D
CA 40215/05 John Bilous (Appellant) Jayanti Mudaliar (First Respondent) Jeevan Investments Pty Ltd (Second Respondent) CA 40810/05 Jayanti Mudaliar (Claimant) John Bilous (First Opponent) Jeevan Investments Pty Ltd (Second Opponent)
FILE NUMBER(S):
CA 40215/05; 40810/05
COUNSEL:
CA 40215/05 A F Givney (Appellant) P Maiden SC (First & Second Respondents) CA 40810/05 P Maiden SC (Claimant & Second Opponent) A F Givney (First Opponent)
SOLICITORS:
CA 40215/05 The Charlestown Law Firm (Appellant) Hills Solicitors (First & Second Respondents) CA 40810/05 Hills Solicitors (Claimant & Second Opponent) The Charlestown Law First (First Opponent)
LOWER COURT JURISDICTION:
Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):
ED…
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
Bilous v Mudaliar [2006] NSWCA 38
Case
[2006] NSWCA 38
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal from a decision of White J in the Supreme Court of New South Wales, brought by the appellant, Mr. Bilous, against the respondent, Ms. Mudaliar. The dispute arose from an application made under section 20 of the *Property (Relationships) Act 1984* (NSW) for an adjustment of property interests following the breakdown of a de facto relationship that had lasted for approximately 11 years. During this period, there was a substantial increase in the parties' assets, with the respondent being the primary income earner.
The central legal issues before the Court of Appeal were whether the trial judge had erred in adopting an "asset-by-asset" approach to the property division, whether the "erosion principle" was applicable in proceedings under the *Property (Relationships) Act*, the relevance of initial contributions to the acquisition of assets, the evaluation of non-financial contributions made by the parties, and whether a deduction for notional rent should be made in circumstances where the parties had occupied the family home rent-free.
The Court of Appeal, comprising Giles, Ipp and McColl JJA, found that the trial judge had erred in his approach to the property adjustment. The Court held that an asset-by-asset approach was not appropriate and that the "erosion principle," which considers the depletion of assets due to the actions of one party, should be applied in cases under the *Property (Relationships) Act*. The Court also considered the significance of initial contributions and the value of non-financial contributions, including those made by the appellant. Furthermore, the Court determined that a deduction for notional rent was not warranted in this case.
Consequently, the Court of Appeal upheld the appeal, setting aside the orders made by White J. The first respondent was ordered to pay the appellant $228,000.00 and $87,163.00 to the trustee of the appellant's superannuation fund. The first respondent was also ordered to pay the costs of the cross-appeal and was granted a certificate under the *Suitors' Fund Act 1951* (NSW) if otherwise qualified.
Orders
Orders of the court
(1) The appeal is upheld with costs (2) The orders of White J are set aside (3) The first respondent is ordered to pay the appellant $228,000.00. (4) The first respondent is ordered to pay J & J Superannuation Pty Ltd, the trustee of the appellant's superannuation fund, $87,163.00 (5) The first respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified (6) The first respondent is ordered to pay the costs of the cross-appeal.