Costello & Langdon
[2024] FedCFamC1A 168
•24 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Costello & Langdon [2024] FedCFamC1A 168
Appeal from: Langdon & Costello [2024] FedCFamC2F 137 Appeal number: NAA 76 of 2024 File number: SYC 4132 of 2022 Judgment of: ALDRIDGE, AUSTIN & TREE JJ Date of judgment: 24 September 2024 Catchwords: FAMILY LAW – APPEAL – Property – Where the appellant contends it was not just and equitable to make an order because the facts were analogous to Stanford v Stanford (2012) 247 CLR 108 – Where there are substantial differences between the matter and Stanford – Whether the primary judge conflated matters under s 90SM(4) and s 90SM(3) of the Family Law Act 1975 (Cth) – Considerations under s 90SM(4) can be taken into account in determining whether it is just and equitable to make orders for property division – Whether the primary judge erred in assessing the cost of the parties’ unmet needs – Orders based on the parties’ various contributions – Any error in identifying and quantifying needs had no impact on the outcome – No error established – Appeal dismissed – Appellant to pay the respondent’s costs. Legislation: Family Law Act 1975 (Cth) ss 79, 90SF, 90SM Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Chapman & Chapman (2014) FLC 93-592; [2014] FamCAFC 91
Cosola & Moretto (2023) FLC 94-143; [2023] FedCFamC1A 61
Fairbairn v Radecki (2022) 275 CLR 400; [2022] HCA 18
Favelle Mort Ltd v Murray (1976) 133 CLR 580; [1976] HCA 13
House v The King (1936) 55 CLR 499; [1936] HCA 40
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Handley, KR, Spencer Bower and Handley: Res Judicata (LexisNexis, 5th edition, 2019)
Number of paragraphs: 65 Date of hearing: 9 August 2024 Place: Sydney Counsel for the Appellant: Mr Livingstone Solicitor for the Appellant: Taylor Rose Counsel for the Respondent: Mr Ford Solicitor for the Respondent: Owen Hodge Lawyers ORDERS
NAA 76 of 2024
SYC 4132 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS COSTELLO
Appellant
AND: MR B LANGDON (AS LITIGATION GUARDIAN FOR MR LANGDON)
Respondent
ORDER MADE BY:
ALDRIDGE, AUSTIN & TREE JJ
DATE OF ORDER:
24 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs in the sum of $14,707 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Costello & Langdon has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & TREE JJ:
INTRODUCTION
In this matter, Mr Langdon and Ms Costello were in a de facto relationship which started in the 1980s. In 2021, after having developed dementia, Mr Langdon was moved to a nursing home.
On 25 June 2021, Mr Langdon’s son, who we will refer to as the litigation guardian (having been so appointed in the proceedings), was appointed as the enduring guardian and attorney of Mr Langdon by way of an Enduring Guardian and an Enduring Power Attorney executed by Mr Langdon. Thereafter, the litigation guardian and Ms Costello could not agree on any matters concerning Mr Langdon.
On 17 June 2022, the litigation guardian commenced proceedings in the Federal Circuit and Family Court of Australia (Division 2) seeking property settlement orders under s 90SM of the Family Law Act 1975 (Cth) (“the Act”). Ms Costello defended the proceedings on the basis that if she paid a further $50,000 to Mr Langdon in addition to the $100,000 she had already paid, it would not be just and equitable to embark on a division of the parties’ property.
The primary judge disagreed saying:
113.I should only make orders pursuant to s 90SM of the Act if I am first satisfied that it is just and equitable to do so. It must not be assumed that the parties’ rights or interests should be different to that which already exists: [Stanford v Stanford (2012) 247 CLR 108].
114.I find that the requirements identified in Stanford are satisfied in this matter, having regard to:
(a)The long period of the parties’ relationship, and the myriad of contributions made over that period;
(b)[Mr Langdon’s] need for a single private room at his current care facility…;
(c)[Ms Costello] holding all the parties’ assets, apart from [Mr Langdon’s] partial property settlement; and
(d)[Ms Costello’s] concession that a further payment to [Mr Langdon] of $50,000 would be a just and equitable result.
(Footnote omitted)
Subsequently, her Honour ordered Ms Costello to pay Mr Langdon $758,903 within 90 days, failing which a property owned by Ms Costello was to be sold so as to raise funds to make the payment.
These reasons explain why the appeal brought by Ms Costello will be dismissed.
THE PROPERTY DIVISION AT FIRST INSTANCE
Before turning to the grounds of appeal it is helpful to set out briefly the property of the parties, their respective contributions and needs as found by the primary judge.
The major asset was a property at Suburb D owned by Ms Costello which was acquired solely by her. In 1991 she took out a loan for $113,911 which she said was for the benefit of Mr Langdon. He repaid $87,942.
Ms Costello received an inheritance of $334,827 in January 2023. She paid $100,000 of this to Mr Langdon’s solicitors’ trust account as a partial property settlement. At the time of the hearing, $143,315 remained. The primary judge quarantined this sum from the other assets for the purpose of determining the appropriate division of property.
Ms Costello held superannuation taken into account in the sum of $102,000.
As to financial contributions, those of Ms Costello were found to be greater with her Honour accepting that Mr Langdon applied his earnings to the parties’ day to day expenses, bills and entertainment.
The non-financial contributions during the relationship were again found to favour Ms Costello as were the financial contributions after Mr Langdon moved to the nursing home.
These matters combined to persuade her Honour that the appropriate division of the property to be divided was 64 per cent to Ms Costello and 36 per cent to Mr Langdon.
THE APPEAL
The Notice of Appeal contains eight grounds but Grounds 1, 2, 3, 4 and 6 all raise the same point, albeit approached in different ways. We shall deal with them together.
Grounds 1, 2, 3, 4 and 6 – Did the primary judge fail to apply the principles set out in Stanford v Stanford?
In short, Ms Costello contends that it was not just and equitable to make an order under s 90SM(3) of the Act because the facts of this matter were identical to the facts before the High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), because the primary judge impermissibly conflated matters arising under s 90SM(4) with the exercise of that discretion and because all Mr Langdon’s needs were being met by the current arrangement.
Section 90SM of the Act is as follows, noting there is no significant difference in terms between it and s 79:
90SM Alteration of property interests
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship – altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i) either or both of the parties to the de facto relationship; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
(2)If a party to the de facto relationship dies after the breakdown of the de facto relationship, an order made under subsection (1) in property settlement proceedings may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(3)The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
In Stanford the parties had a long-term marriage. The wife suffered a stroke and then developed dementia. The husband continued to provide for her although most of the costs of her care were being provided for by the health system.
In the course of oral argument, counsel for Ms Costello accepted, as he must, that the principle of stare decisis which obliges the court to follow decisions on law of a higher court in the same hierarchy does not apply to findings of fact (Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 591 per Barwick CJ; KR Handley, Spencer Bower and Handley: Res Judicata (LexisNexis, 5th edition, 2019) at paragraph 1.15).
Nonetheless counsel for Ms Costello submitted that the case before the primary judge was so analogous to the facts in Stanford that it was an error of law for the same result not to have ensued. This is just a long way of saying the outcome was plainly wrong, which is a recognised error in the exercise of a discretion (House v The King (1936) 55 CLR 499). No appeal ground asserted such an error.
The point is, however, fatally flawed. There were at least three very substantial differences in the matters before the two courts.
First, in Stanford the parties had not separated in the sense that the relationship had ended – the parties were involuntarily living apart because of the illness of one of them. Here, there was an unchallenged finding that the parties had separated in 2021 at the time Mr Langdon had been placed into care (at [32]). This was consistent with the evidence of Ms Costello which was that it was her view, formed in October 2022, that the relationship was no longer viable (at [29]).
Secondly, each of the parties was seeking a property settlement order under s 90SM of the Act. The modest size of the proposal of Ms Costello (that a further $50,000 be paid to Mr Langdon) is entirely irrelevant. The point is that the parties each accepted that it was just and equitable for there to be an order under s 90SM.
Thirdly, unlike the position in Stanford, Mr Langdon had an unmet need.
The circumstances in this matter are very different to those in Stanford.
As to the question of the use of s 90SM(4), the majority made it clear that s 79(2) (the counterpart of s 90SM(3)) provided for the court first to be satisfied that it was just and equitable to make a property settlement order having regard to the parties’ existing legal and equitable interests in property, saying:
35.It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
(Emphasis added)
Their Honours continued:
36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the test of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property” (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38.Secondly, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In With v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong:
“The judge called upon to decide proceedings of that kind is not entitled to do what has been described as ‘palm tree justice’. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down.”
39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered.
40.Thirdly, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
(Citations omitted, bold emphasis added)
Ms Costello relies on the emphasised passages to argue that in taking into account Mr Langdon’s need for a single private room at his current care facility, the primary judge had impermissibly conflated matters under s 90SM(4) of the Act with the inquiry under s 90SM(3).
The question is whether the Court can take into account considerations under s 90SM(4) when determining whether or not it is just and equitable to divide the parties’ property. We consider that the answer is clearly yes.
The decision in Stanford supports such a conclusion.
At [36], the majority noted that the expression “just and equitable” “does not admit of exhaustive definition” and it is “not possible to chart its metes and bounds”.
Considerations under s 90SM(4) would not be excluded under that approach.
At [42], the majority pointed out that the voluntary separation of parties brings to an end any express or implicit assumption as to the mutual use of their property. In such cases the court will be easily satisfied that it is just and equitable to make an order under s 79 (or s 90SM) of the Act.
It is different where there is a bare involuntary separation. The majority continued:
44.When, as in this case, the separation of the parties is not voluntary, the bare fact of separation does not demonstrate that the husband and wife have any reason to alter the property interests that lie behind whatever common use they may have made of assets when they were able to and did live together. Common use of some assets may very well continue, as it did here when the husband made provision for the wife’s care and accommodation. Past arrangements that the parties have made about their property interests on the assumption, expressed or implicit, that those arrangements were sufficient and appropriate during the continuance of their marriage are not necessarily falsified. If both parties are competent, it can still be assumed that any necessary or desirable adjustment can be made to their property interests consensually. And if one of the parties has become incompetent it is not to be assumed that the other party lacks the will and ability to make those necessary or desirable adjustments.
45.Contrary to the submissions of the husband in this Court, there may be circumstances other than a voluntary separation of the parties marking the breakdown of their marital relationship in which a court may be satisfied that it is just and equitable to make a property settlement order. For example, demonstration of one party’s unmet needs that cannot be answered by a maintenance order may well warrant the conclusion that it is just and equitable to make a property settlement order. It may be that there are circumstances other than need.
46.As has already been emphasised, nothing in these reasons should be understood as attempting to chart the metes and bounds of what is “just and equitable”. Nor is anything that is said in these reasons intended to deny the importance of considering any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable. In particular, as the Full Court pointed out in its first judgment in this matter, the magistrate erred in not taking account of the consequences that would follow for the husband if a property settlement order were to be made in the terms which were sought on behalf of the wife. The husband would be required to sell the matrimonial home, in which he was still living, despite the needs of his wife then being met by the provision of full time care, a further provision of money against future contingencies and the possibility, if needed, of making a maintenance order.
(Bold emphasis added)
Thus the unmet needs of one of the parties in such a case is a consideration. That unmet need may make it just and equitable for there to be a property division.
More recently, the High Court adopted a similar approach in Fairbairn v Radecki (2022) 275 CLR 400 (“Fairbairn”). The Court, in finding that the de facto relationship had broken down, said:
42.The appeal must be allowed. That is not because the appellant was obliged to move permanently into an aged care facility. Nor is it because of the appellant’s mental incapacity. While each of these matters may be relevant to the inquiry into whether the de facto relationship between the appellant and respondent had broken down, neither is determinative. A de facto relationship may continue even though the parties physically reside at different locations, and despite one of those parties suffering from (severe) illness.
43.Instead, for the purposes of ss 90SM and 4AA of the Act, having regard to all of the circumstances, including the conduct of the respondent, the de facto relationship between the appellant and the respondent had, by no later than 25 May 2018, broken down. Those circumstances demonstrated a persistent refusal by the respondent to make “the necessary or desirable adjustments”, to use the language of Stanford, which might have evidenced an ongoing relationship.
In that case, the necessary adjustments had not been made because “[t]hereafter, the respondent refused to permit the home to be sold, made parsimonious attempts to make financial contributions to support the appellant’s care, refused to cooperate with the Trustee and the appellant’s children concerning her ongoing care, and failed to disclose his own assets to Centrelink. The respondent’s persistent refusal to reside elsewhere and permit the home to be sold served his and not the appellant’s interests” (Fairbairn at [45]).
Thus, where the relationship has not broken down the explicit and implicit assumptions about the parties’ mutual use of their property remain in place. Ordinarily, such assumptions would include the use of the parties’ income and property for each party to be provided for properly. Thus, as Stanford pointed out, those needs might be satisfied by orders for spousal maintenance but where they would not then those unmet needs might make it just and equitable to make a property settlement order.
Considerations under s 90SM(4) of the Act may therefore inform both the exercise of the discretion in deciding whether it is just and proper to make an order and then in evaluating what that order should be. Conflation of the two roles occurs when the quantification of the need, for example, is used as justification for the exercise of the first discretion.
This is consistent with the decisions of the Full Court in Bevan & Bevan (2013) FLC 93-545 and Chapman & Chapman (2014) FLC 93-592, notwithstanding the slightly different emphasis in each. We note too, the comments of the Full Court in Cosola & Moretto (2023) FLC 94-143 at [39]. No argument was directed to these issues and whether any differences are substantial. We will not address them further except to say that we consider the guidance provided by Stanford is clear.
It follows that the primary judge did not err by taking into account Mr Langdon’s unmet needs for better care when deciding it was just and equitable for there to be a division of the parties’ property.
The submissions then turned to the cost of a private room. Her Honour recorded the following:
156.The cost to [Mr Langdon] of moving to a private room at [the nursing home] with his own bathroom is $650,000. Given his significant health needs, I find that it is a significant need of [Mr Langdon] to be homed in a private room.
The evidence was that the cost of a single room was a single payment of $600,000, a daily payment of $66.90 or a payment of $480,000 plus a daily payment of $13.38 (Exhibit H3, Annexure F to the litigation guardian’s affidavit filed 16 June 2022). It was agreed that by the time of the hearing these costs had increased so that the first had become $650,000.
Counsel submitted that on this evidence, the primary judge erred at [156]. Clearly, her Honour did not. The finding accorded with the evidence.
It was then submitted that Mr Langdon’s need could be met by the payment of $66.90 per day so that the amount proposed to be paid by Ms Costello together with the $100,000 already paid and which had been retained by him and the litigation guardian would be sufficient to secure him a private room. It was added that when the costs of the litigation funder who was financing the matter for the litigation guardian were taken into account, the money to be received would be insufficient to acquire a single room, so his need would remain unmet. This last submission conveniently overlooks the second and third options just noted.
These submissions are based on a misapprehension of her Honour’s reasons and a false assumption that the sole point of the order under s 90SM of the Act was to improve the accommodation for Mr Langdon.
In accordance with the steps identified in Stanford, the primary judge first identified the parties’ equitable and legal interests in the property held by them. Then, in a passage already quoted, her Honour found it was just and equitable to make a property settlement order. As we have observed, this was, in reality, the position of both parties. It is to be remembered that Ms Costello proposed an order that obliged her to pay $50,000 to Mr Langdon.
Thereafter the primary judge applied s 90SM(4) of the Act which required her Honour to take into account the parties’ financial and non-financial contributions to the property of either of them and the welfare of the family and any relevant matter under s 90SF(3). The express terms of the statute prohibit the primary judge from taking the course identified by Ms Costello, which was that consideration should be limited to the needs of Mr Langdon (s 90SF(3)(d) and (g) of the Act) let alone the cheapest way of meeting those needs.
Her Honour identified the parties’ contributions based entitlements as favouring Ms Costello as to 64 per cent and 36 per cent to Mr Langdon (at [115]–[153]).
Her Honour then turned to the matters to be considered under s 90SM(4)(d)–(g) and s 90SF(3) at [154]–[160]. This included the earlier quoted paragraph as to the costs of a single room.
Taking these matters into account, the primary judge found that it was not just and equitable to make any further adjustments (at [161]).
It follows that the orders that were made were based upon the parties’ various contributions and not on his or her needs. Thus, an error in the identification, cost and weighting of these needs had absolutely no impact on the outcome of the proceedings whatsoever.
When pressed with these matters, counsel for Ms Costello returned to what was said to be the excessive amount awarded to Mr Langdon compared with how easily his needs could be met by a daily payment of $66.90. In the absence of a ground asserting the outcome was unreasonable or plainly wrong this can only be a complaint that Ms Costello’s contentions were not accepted. That does not identify error.
These grounds do not succeed.
Ground 5 – Did the primary judge fall into error by failing to take into account the impact of the litigation funding debt?
We have already dealt with this at [44]. This ground fails.
Ground 7 – Did the primary judge fail to have regard to relevant matters?
This ground was set out as follows:
7. That the court failed to have regard to the relevant matters being:
7.1That the separation of the parties was not voluntary and was brought about by [Mr Langdon’s] poor health;
7.2That provision was being made for [Mr Langdon’s] care such that [Mr Langdon’s] pension was sufficient to meet all his needs.
The ground ignores the agreed separation and end of the relationship by Ms Costello as noted earlier, and the primary judge’s finding about desirable care.
Her Honour did not have regard to the matters complained of because the position was found to be otherwise.
This ground fails.
Ground 8 – Did the primary judge err “in failing to accept [Ms Costello’s] unchallenged evidence that her pension was reduced as a result of [Mr Langdon] being the registered proprietor of a property pursuant to a scheme involving [Mr Langdon] and the litigation guardian to defraud the revenue”?
The primary judge found:
23.[Ms Costello] alleges that in 2009, [Mr Langdon] applied for and was granted a First Homeowners Grant. The purpose of that grant was to assist his son, the litigation guardian, to purchase a home in [Suburb C] (“the [Suburb C] property”). The litigation guardian contends that [Mr Langdon] “gifted” this to him and his wife in 2018. While the litigation guardian maintained this contention at the final hearing, [Ms Costello] argues that the money received by the grant was not [Mr Langdon’s] to gift because it was improperly obtained.
24.It is common ground between the parties that [Mr Langdon] held no interest in the [Suburb C] property and that any representation otherwise made was for the purpose of receiving the First Homeowners Grant. It is common ground between the parties that the benefit of the First Homeowners Grant was received by the litigation guardian.
25.[Ms Costello] contends that as a consequence of [Mr Langdon] being represented as on the title of the [Suburb C] property, both parties’ pensions were significantly affected. [Ms Costello’s] evidence, which was not challenged, is that this amounted to a $50,000 loss for her in relation to her pension. There was no independent evidence to support [Ms Costello’s] contention, and I do not make a finding that there was a loss in this amount as a consequence of the acquisition of the [Suburb C] property.
As this passage shows, her Honour accepted that the pensions were affected, but was not prepared to accept Ms Costello’s evidence as to the quantum.
Her evidence was:
36.After discussions we disclosed the [Suburb C] property to Centrelink as we were both receiving Government pensions. Due to the acquisition of the [Suburb C] property both our Pensions were significantly affected for at least give (5) years.
a.The calculations I made in relation to what I was required to be paid showed that this affected 50 percent of my pension payment or approximately $50,000.
(Affidavit of Ms Costello filed 6 September 2023)
That is no more than a bald assertion as to what was lost which her Honour was entitled not to accept.
This ground does not succeed.
DISPOSITION
No ground has been successful. It follows that the appeal will be dismissed.
COSTS
Counsel for Ms Costello properly accepted that if the appeal did not succeed it would be just to make an order for costs in the amount sought by the litigation guardian, namely $14,707. Accordingly, that order will be made.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Tree. Associate:
Dated: 24 September 2024
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