Burgess v Moss

[2010] NSWCA 139

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 ¶ 95-414
PARTIES:	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

BEAZLEY JA
TOBIAS JA
BRERETON J

Ex Tempore Monday 31 May 2010

GARY WILLIAM BURGESS v SARAH DAWN MOSS

Judgment

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…