DE FACTO RELATIONSHIPS - adjustment of interests under s.20 of Property (Relationships) Act - by majority, appeal allowed and further adjustments ordered - observations on operation of s.20 where superannuation entitlements are a financial resource - no necessary relationship between contribution to financial resource and incidence of adjustment on property - views of Powell and Cole JJA in Green v Robinson disapproved: see Hodgson JA at [20]-[21] Bryson JA at [82]-[90] David Hunt AJA at [120].
Maree Eve Chanter - Appellant Peter Frederick Catts - Respondent
FILE NUMBER(S):
CA CA 40281/2005
COUNSEL:
Mr C.M. Simpson with Ms D Ward - Appellant Mr M Broun QC - Respondent
SOLICITORS:
Adrian Twigg & Co - Appellant Stuart Fowler & Partners - Respondent
LOWER COURT JURISDICTION:
Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):
ED 3690/2002
LOWER COURTJUDICIAL OFFICER:
Master Macready
CA 40281/2005
HODGSON JA BRYSON JA HUNT AJA
25 November 2005
MAREE EVE CHANTER v PETER FREDERICK CATTS
Judgment
1 HODGSON JA: On 2 December 2004, pursuant to reasons for judgment given on 19 November 2004, Master Macready made orders in proceedings in which the appellant had sought orders under the Property (Relationships) Act 1984. The substantial effect of those orders was that an agreement between the parties dated 18 April 1997 was set aside; that a jointly owned property at 3 Foss Street, Hunters Hill was to be sold, with four-fifths of the net proceeds going to the appellant and one-fifth to the respondent; that otherwise each party was to be the owner of property in their name or possession; and that the parties were entitled to retain superannuation held under their own names to the exclusion of the other party. The Master also made orders as…
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.
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Details
AGLC
Chanter v Catts [2005] NSWCA 411
Case
[2005] NSWCA 411
Decision Date
CaseChat Overview and Summary
The appeal in *Chanter v Catts* concerned an adjustment of interests under section 20 of the *Property (Relationships) Act 1984* (NSW). The dispute arose between former de facto partners regarding the division of their property. The case was heard by the Court of Appeal of New South Wales.
The primary legal issue before the court was how to approach the adjustment of property interests under section 20 of the Act, particularly where superannuation entitlements constituted a significant financial resource. The court was required to determine whether there was a necessary connection between a party's contribution to the accumulation of a superannuation entitlement and the incidence of adjustment of that resource in favour of the other party.
The majority of the court, comprising Hodgson JA and Bryson JA, allowed the appeal and ordered further adjustments. Their Honours disapproved of the views expressed by Powell and Cole JJA in *Green v Robinson*, which suggested a closer link between contribution and adjustment in relation to superannuation. The court held that there is no necessary relationship between the contribution made to a financial resource, such as superannuation, and the incidence of adjustment of that resource under section 20. David Hunt AJA agreed with the outcome.
Consequently, the appeal was allowed, and the original orders were varied to reflect the further adjustments ordered by the court.