New South Wales
Court of Appeal
CITATION: Burgess v Moss [2010] NSWCA 139 HEARING DATE(S): 31 May 2010 JUDGMENT OF: Beazley JA at 24; Tobias JA at 28; Brereton J at 1 EX TEMPORE JUDGMENT DATE: 31 May 2010 DECISION: Appeal dismissed with costs CATCHWORDS: FAMILY LAW AND CHILD WELFARE – de facto relationships – adjustment of property interests – close personal relationship – whether different approach to evaluation of contributions in close personal relationship. LEGISLATION CITED: (NSW) Property (Relationships) Act 1984 CATEGORY: Principal judgment CASES CITED: Dwyer v Kaljo (1992) 27 NSWLR 728
Figgins v Figgins (2002) 173 FLR 273
Hayes v Marquis (2008) NSWCA
Howlett v Neilson (2005) 33 FamLR 402
Kennon v Kennon (1997) FLC 92-757
Mallet v Mallett (1984) 156 CLR 605
Moss v Burgess [2009] NSWDC138
Sharpless v McKibbin (2007) NSWSC 1498; (2008) DFC ¶ 95-414PARTIES: Garry William Burgess (Appellant)
Sarah Dawn Moss (Respondent)FILE NUMBER(S): CA 2009/298353 COUNSEL: P Maiden SC w J F Heazlewood (Appellant)
C M Simpson SC w W J Tregilgas (Respondent)SOLICITORS: G J Harris & Co (Appellant)
Braye Cragg Solicitors (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 114/08 LOWER COURT JUDICIAL OFFICER: Sidis DCJ LOWER COURT DATE OF DECISION: 19 June 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Moss v Burgess [2009] NSWDC 138
2009/298353
Ex Tempore Monday 31 May 2010BEAZLEY JA
TOBIAS JA
BRERETON J
1 BRERETON J: The appellant Garry William Burgess and the respondent Sarah Dawn Moss commenced to cohabit as a couple in a de facto relationship in 1990. Mr Burgess brought to the relationship about $340,000, which he used early in the relationship to acquire a property, Hollydene Park, in which the partners thereafter resided. Thereafter, his were by far the predominant income contributions and he also undertook some development towards subdivision of Hollydene Park. Ms Moss brought practically no assets to the relationship. She made some modest income contributions, but her predominant contributions were as a homemaker.
2 According to the findings made at trial, in or about late 1996 the parties occupied separate bedrooms in the same premises and the relationship thereafter ceased to be a de facto relationship and became a close personal relationship, but nonetheless continued as a domestic relationship within the (NSW) Property (Relationships) Act 1984 until the parties finally separated in 2006, after a relationship of one kind or the other of some sixteen years, leaving a pool of divisible property which was found by the trial judge to amount to some $1,109,000 net, apart from the proceeds of a post-separation inheritance of Mr Burgess which were totally excluded from consideration.
3 In proceedings brought by Ms Moss in the District Court under the Property (Relationships) Act, Sidis DCJ ordered, pursuant to s 20, that Mr Burgess pay Ms Moss by way of adjustment of property interests the sum of $195,000, and costs [Moss v Burgess [2009] NSWDC 138]. Mr Burgess appeals…
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- AGLC
- Burgess v Moss [2010] NSWCA 139
- Case
- [2010] NSWCA 139
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the trial judge had erred in their assessment of the parties' contributions, both financial and non-financial, to the relationship and the acquisition, conservation, and improvement of their property. This involved determining the appropriate weight to be given to various forms of contribution within the context of a de facto partnership.
The Court affirmed that the principles governing property adjustments in de facto relationships are broadly similar to those in marriage, requiring a just and equitable division. Beazley and Tobias JJA, with Brereton J agreeing, found no error in the trial judge's approach, which had properly considered the contributions of each party, including homemaker and parent contributions, alongside financial contributions. The Court emphasised that the ultimate aim is a fair outcome, taking into account all relevant circumstances.
The appeal was dismissed, and the appellant was ordered to pay the costs of the respondent.
Orders
Orders of the court
Appeal dismissed with costs
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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