BLM v RWS - [2006] QCA 528

SUPREME COURT OF QUEENSLAND

CITATION:

BLM v RWS [2006] QCA 528

PARTIES:

BLM
(plaintiff/respondent/cross-appellant)
v
RWS
(defendant/appellant/cross-respondent)

FILE NO/S:

Appeal No 5759 of 2006
SC No 4508 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2006

JUDGES:

Keane JA, White J and Philip McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal allowed, but only to the extent that the orders made by learned trial judge are varied by reducing the amount remaining to be paid by the appellant to the respondent from $119,802.03 to $65,802.031.

Cross-appeal dismissed2.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIP - ADJUSTMENT OF PROPERTY INTERESTS - GENERALLY - appellant and respondent lived in de facto relationship for approximately four years - appellant and respondent had two children together - respondent applied for property adjustment under Part 19 of Property Law Act 1974 (Qld) - dispute over trial judge's assessment of the value of business and associated assets - dispute over post-separation loan repayments made by appellant - dispute over the value of the appellant's initial financial contribution to the asset pool - dispute over percentage distribution of the available pool of assets - dispute over allowance made against respondent for her wastage of assets or extravagance - concept of "erosion" - orders as to costs under Part 19 - whether the learned trial judge erred

Property Law Act 1974 (Qld) s 286, s 291, s 300, s 303, s 341
Supreme Court Act 1995 (Qld), s 253

Coulton v Holcombe (1986) 162 CLR 1, cited
E v S [2003] QSC 378; SC No 7405 of 2002, 3 October 2003, cited
Farmer v Bramley [2000] FamCA 1615; (2000) 27 Fam LR 316, cited
Fitzgerald v Finch, BRF No 3420 of 2004, 2 June 2006, considered
In the marriage of Bremner (1994) 18 Fam LR 407, cited
In the marriage of Money (1994) 17 Fam LR 814, cited
In the marriage of Pierce (1998) 24 Fam LR 377, cited
In the marriage of Way (1995) 124 FLR 447, cited
Weir v Weir (1993) FLC 92-338, cited

COUNSEL:

C J O'Neill for the appellant
J O McClymont for the respondent

SOLICITORS:

Bennett & Philp for the appellant
McDonald Brown for the respondent

KEANE JA: Between January 1998 and 2 June 2002, the appellant and the respondent lived in a de facto relationship within the meaning of s 260 of the Property Law Act 1974 (Qld) ("the PLA"). There was a period of temporary separation between January and June 2000. There were two children of the relationship: they were born on 13 April 1999 and 31 August 2001. The respondent applied for a property adjustment order under Pt 19 of the PLA seeking, in broad terms, an order that the appellant pay to her 60 per…

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 BLM v RWS

Details

AGLC: BLM v RWS [2006] QCA 528
Case: [2006] QCA 528
Decision Date: 8 December 2006

CaseChat Overview and Summary

In this case, the appellant and the respondent were in a de facto relationship for approximately four years and had two children together. The respondent applied for property adjustment under Part 19 of the Property Law Act 1974 (Qld), which the appellant contested. The central issues before the court were the valuation of the business and associated assets, the post-separation loan repayments made by the appellant, the value of the appellant's initial financial contribution to the asset pool, the percentage distribution of the available pool of assets, and the allowance made against the respondent for her wastage of assets or extravagance. The concept of "erosion" was also a subject of debate.

The court examined these issues by referring to several previous cases and statutes, including In the marriage of Pierce, In the marriage of Way, In the marriage of Money, In the marriage of Bremner, Weir v Weir, and Farmer v Bramley. The court considered the principles of equity and fairness in the distribution of assets under the Property Law Act 1974 (Qld). The trial judge's assessment of the value of the business and associated assets, the post-separation loan repayments, the value of the appellant's initial financial contribution, the percentage distribution of the available pool of assets, and the allowance for wastage or extravagance were all scrutinized.

The court found that the trial judge's valuation of the business and associated assets, as well as the post-separation loan repayments, were correct. However, the court found that the trial judge had erred in assessing the value of the appellant's initial financial contribution to the asset pool, which should have been higher. The court also found that the trial judge's percentage distribution of the available pool of assets was not in accordance with the principles of equity and fairness. The court further found that the trial judge had not made an appropriate allowance for the respondent's wastage of assets or extravagance.

The court allowed the appeal but only to the extent that the orders made by the trial judge are varied by reducing the amount remaining to be paid by the appellant to the respondent from $119,802.03 to $65,802.03. The cross-appeal was dismissed.

Orders

Orders of the court

Appeal allowed, but only to the extent that the orders made by learned trial judge are varied by reducing the amount remaining to be paid by the appellant to the respondent from $119,802.03 to $65,802.031.

Cross-appeal dismissed2.

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.

CITATION:	BLM v RWS [2006] QCA 528
PARTIES:	BLM (plaintiff/respondent/cross-appellant) v RWS (defendant/appellant/cross-respondent)
FILE NO/S:	Appeal No 5759 of 2006 SC No 4508 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2006
JUDGES:	Keane JA, White J and Philip McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal allowed, but only to the extent that the orders made by learned trial judge are varied by reducing the amount remaining to be paid by the appellant to the respondent from $119,802.03 to $65,802.031. Cross-appeal dismissed2.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIP - ADJUSTMENT OF PROPERTY INTERESTS - GENERALLY - appellant and respondent lived in de facto relationship for approximately four years - appellant and respondent had two children together - respondent applied for property adjustment under Part 19 of Property Law Act 1974 (Qld) - dispute over trial judge's assessment of the value of business and associated assets - dispute over post-separation loan repayments made by appellant - dispute over the value of the appellant's initial financial contribution to the asset pool - dispute over percentage distribution of the available pool of assets - dispute over allowance made against respondent for her wastage of assets or extravagance - concept of "erosion" - orders as to costs under Part 19 - whether the learned trial judge erred Property Law Act 1974 (Qld) s 286, s 291, s 300, s 303, s 341 Supreme Court Act 1995 (Qld), s 253 Coulton v Holcombe (1986) 162 CLR 1, cited E v S [2003] QSC 378; SC No 7405 of 2002, 3 October 2003, cited Farmer v Bramley [2000] FamCA 1615; (2000) 27 Fam LR 316, cited Fitzgerald v Finch, BRF No 3420 of 2004, 2 June 2006, considered In the marriage of Bremner (1994) 18 Fam LR 407, cited In the marriage of Money (1994) 17 Fam LR 814, cited In the marriage of Pierce (1998) 24 Fam LR 377, cited In the marriage of Way (1995) 124 FLR 447, cited Weir v Weir (1993) FLC 92-338, cited
COUNSEL:	C J O'Neill for the appellant J O McClymont for the respondent
SOLICITORS:	Bennett & Philp for the appellant McDonald Brown for the respondent