Bowden v Bowden - [2020] NSWSC 1863

Supreme Court

New South Wales

Medium Neutral Citation: Bowden v Bowden [2020] NSWSC 1863
Hearing dates: 17 December 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Jurisdiction: Equity
Before: Slattery J
Decision:
The parties are directed to put on further evidence. The matter is adjourned. Costs are reserved.

Catchwords:
CIVIL PROCEDURE – Alternative dispute resolution – Court referral to referee – Court’s use of report – in a May 2019 judgment of the Court the first plaintiff and the first defendant were found to each hold a 50% interest in certain real property – the balance of the proceedings concerning the parties’ contributions to the improvement of that property was to be determined by a referee, pursuant to Uniform Civil Procedure Rules 2005, r 20 – the referee produced a report to the Court on 25 May 2020 – the defendants seek orders that this report be adopted – the first and second plaintiff resist the making of such an order – where the report does not consider the contributions made to the real property by the second plaintiff, a family trust – where other complaints are made about the report the first and second plaintiff seek an adjournment to put on further evidence.

Legislation Cited:
Conveyancing Act 1919, s 66G
Uniform Civil Procedure Rules2005, Pt 20, Div 3, rr 20, 20.24

Cases Cited:
Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2003] NSWSC 547.
Franks v Berem Constructions Pty Ltd [1998] NSWCA 87
Morris v Morris [1982] 1 NSWLR 61
Tryhaz Pty ltd v Fielders Engineers Pty Ltd [2005] NSWSC 906

Category: Consequential orders
Parties: Plaintiff: Kevin Alwyn Bowden
First Defendant: Julie Gaye Bowden
Second Defendant: Ian Bowden
Representation:
Counsel:
First and Second Defendants: D. Eardley
Solicitors:
Plaintiff: Kevin Alwyn Bowden

File Number(s): 2017/376872
Publication restriction: No

EX TEMPORE Judgment

The first defendant, Mrs Julie Bowden, is the registered proprietor of certain residential property in the Nowra district (“the Nowra property”). She is married to the second defendant, Mr Ian Bowden. Mr Kevin Bowden, the first plaintiff, is Ian Bowden’s and Julie Bowden’s brother-in-law. Kevin Bowden and a family trust of which he is the trustee, the second plaintiff, commenced these proceedings in 2017, seeking declarations that the plaintiffs held a 50 per cent interest in the property.
The proceedings came on for hearing before Pembroke J on 10 April 2019. His Honour gave judgment after a short hearing, in which he described these proceedings as “an untidy case”, an observation with which the Court agrees. His Honour found that Kevin Bowden and Julie Bowden each held a 50 per cent interest in the property. His Honour’s judgment finds that Kevin Bowden and Julie Bowden each had the 50 per cent interest in the acquisition of the unimproved land component of the Nowra property before any building was erected on it through the efforts of the plaintiffs and the defendants. His Honour found that:

“The only reasonable conclusion having…

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 Bowden v Bowden

Details

AGLC: Bowden v Bowden [2020] NSWSC 1863
Case: [2020] NSWSC 1863
Decision Date: 17 December 2020

CaseChat Overview and Summary

In Bowden v Bowden, the parties contested the determination of their respective contributions to the improvement of certain real property. The dispute was before the court following a previous judgment that found the first plaintiff and the first defendant to each hold a 50% interest in the property. The court referred the remaining issues to a referee under the Uniform Civil Procedure Rules 2005. On 25 May 2020, the referee submitted a report to the court. The defendants applied for the report to be adopted, while the plaintiffs opposed this, arguing the report omitted contributions made by the second plaintiff, a family trust, and contained other flaws. The plaintiffs also sought an adjournment to present further evidence.

The court was required to determine whether the referee's report should be adopted and whether the plaintiffs' objections warranted an adjournment for additional evidence. Central issues included the completeness of the referee's report, particularly the omission of contributions by the family trust, and whether the plaintiffs' complaints about the report justified further proceedings. The court also needed to assess if the plaintiffs' requests for adjournment would unduly delay the proceedings.

The court found that the referee's report did not adequately consider the contributions made by the family trust and acknowledged other deficiencies in the report. Given these shortcomings, the court refused to adopt the report. The court further determined that the plaintiffs' objections were sufficiently compelling to warrant an adjournment to allow for further evidence. The court granted the adjournment to ensure a fair assessment of all contributions to the property. The court's decision highlighted the importance of thoroughness and accuracy in referee reports and the need to address all relevant contributions to avoid procedural unfairness.

The court ordered that the referee's report be not adopted and that the proceedings be adjourned to allow the plaintiffs to present further evidence. This decision underscored the court's commitment to ensuring that all relevant contributions are considered in determining the parties' interests in the property.

Orders