Burgess v King

[2005] NSWCA 396

Reported Decision: (2006) DFC 95-328

Court of Appeal

CITATION:	Burgess v. King [2005] NSWCA 396
HEARING DATE(S):	2 November 2005
JUDGMENT DATE:	18 November 2005
JUDGMENT OF:	Mason P at 1; Hodgson JA at 2; Campbell AJA at 37
DECISION:	1. Appeal allowed. 2. Orders below varied by substituting for the figure of $65,000.00 the figure of $115,000.00. 3. Appellant to pay the respondent’s costs of the proceedings at first instance on a party and party basis. 4. Respondent to pay the appellant’s costs of the appeal, and to have a certificate under the Suitors’ Fund Act if otherwise eligible.

CATCHWORDS:	FAMILY LAW - De facto relationships - Statutory power to make orders adjusting property interests of parties - Matters to be considered - Large capital gain in matrimonial home owned by respondent - Respondent able to keep home because of contributions by appellant of about one-quarter its value - Whether primary judge should have considered whether the appellant should have some benefit from this capital gain - Extent of appellate intervention.
LEGISLATION CITED:	Property (Relationships) Act 1984 s.20
PARTIES:	Raymond Peter Burgess - appellant Sandra Elizabeth King - respondent
FILE NUMBER(S):	CA 40260/05
COUNSEL:	Mr. R. Maurice for appellant Mr. J. Levy for respondent
SOLICITORS:	Heazlewoods Bushby International, Epping for appellant Thurlow Fisher, Bankstown for respondent

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC1635/04
LOWER COURT JUDICIAL OFFICER:	Young CJ in Eq.

CA 40260/05
SC 1635/04

MASON P
HODGSON JA
M.W. CAMPBELL AJA

Friday 18 November 2005

BURGESS V. KING

Judgment

1 MASON P: I agree with Hodgson JA.

2 HODGSON JA: On 24 March 2005, Young CJ in Eq. gave judgment in proceedings in which the appellant and respondent had each sought orders under the Property (Relationships) Act 1984. For reasons given in that judgment, the primary judge ordered that the respondent pay the appellant $65,000.00, and that there be an equitable charge on the respondent’s house property for that amount. On 17 May 2005, the primary judge ordered that the appellant pay the respondent’s costs of the proceedings on an indemnity basis.

3 The appellant appeals to this Court from those orders.

CIRCUMSTANCES

4 The appellant was born in 1951 and the respondent was born in 1953. A de facto relationship between them commenced in 1989, and concluded in 2002.

5 Both had previously been married, and each of them had children from those marriages. The appellant has two children, one born in 1976 and the other born in 1988. The respondent has three children, born respectively in 1978, 1981 and 1985. There are no children of the relationship between the appellant and the respondent.

6 At the commencement of the relationship, the appellant had a 50% interest in his former matrimonial home, although this was never applied for the benefit of the relationship. Ultimately, the appellant received in satisfaction of this interest $60,000.00 in 1994 and $40,000.00 in 1999. He used about $70,000.00 in 1998 to purchase a unit at…