HAROLD JAMES JOHNSON	Plaintiff by Counterclaim
and
PIPPIN PATRICIA CRESSY	First Defendant by Counterclaim
and
DAVID HANLON	Second Defendant by Counterclaim
and
HARWOOD ANDREWS PTY LTD (ABN 98 076 868 034)	Third Defendant by Counterclaim

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATES OF HEARING:	2-5, 8-12 December 2008; 5 February 2009; 9-11, 13, 16, 17 February 2009
DATE OF JUDGMENT:	25 February 2009
CASE MAY BE CITED AS:	Cressy v Johnson (No. 3)
MEDIUM NEUTRAL CITATION:	[2009] VSC 52

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PROPERTY – Application for adjustment of property interests under Part IX of the Property Law Act 1958 (Vic) – Whether parties in a domestic relationship – Assessing contributions – Financial and non-financial contributions – Constructive trust – Counterclaims for damages for trespass to goods, lodging caveat and abuse of process.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff and First Defendant by Counterclaim	Mr G Devries	Berry Family Law
For the Defendant and Plaintiff by Counterclaim	Mr H J Johnson appeared in person
For the Second and Third Defendants by Counterclaim	Ms R Sofroniou	Lander & Rogers

TABLE OF CONTENTS

The course of proceedings................................................................................................................ 3

Part 9 of the Property Law Act 1958................................................................................................ 7

Introduction to factual issues.......................................................................................................... 8

The plaintiff’s evidence.................................................................................................................... 9

The defendant’s case....................................................................................................................... 15

Missing documents.......................................................................................................................... 27

The plaintiff’s missing documents................................................................................. 28
The defendant’s missing documents.............................................................................. 29

Final submissions by parties: defendant’s submissions......................................................... 34

Final submissions by parties: plaintiff’s submissions............................................................ 38

Domestic relationship..................................................................................................................... 42

Identification of assets.................................................................................................................... 57

Contributions.................................................................................................................................... 60

Contributions to purchase of properties..................................................................................... 60

Role of plaintiff in purchase of properties............................................................................... 62
Contributions to renovations, repairs and works to properties........................................... 64
Payment of mortgage, utilities, insurances and the like in respect of properties.............. 65
Contributions to household expenses...................................................................................... 66
Contributions as homemakers and parents and to welfare of the family.......................... 69
Assessment and comparison of contributions of plaintiff and defendant......................... 70

Relief under Part 9 of the Property Law Act............................................................................... 76

Alternative claim: constructive trust........................................................................................... 82

The defendant’s cross-claim against the plaintiff..................................................................... 95

Conclusion....................................................................................................................................... 103

Orders............................................................................................................................................... 104

HIS HONOUR:

In these proceedings, the plaintiff makes a claim against the defendant, under Part 9 of the Property Law Act 1958 (Vic), arising from a domestic relationship which she alleges she had with the defendant between September 1998 and May 2007. The plaintiff’s claim is based on the acquisition of a number of properties in the name of the defendant during and after the conclusion of the relationship. Alternatively, the plaintiff claims that the defendant holds the properties, purchased in his name, on a constructive trust on behalf of herself and the defendant. The two claims by the plaintiff are made on the basis of contributions, both financial and non-financial, which the plaintiff alleges that she made to the relationship and to the properties for the benefit of herself and the defendant.

In particular, the…

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.

Continue reading Cressy v Johnson

Details

AGLC: Cressy v Johnson [2009] VSC 52
Case: [2009] VSC 52
Decision Date: 25 February 2009

CaseChat Overview and Summary

The matter of Cressy v Johnson involved a dispute over the adjustment of property interests between two individuals who had been in a domestic relationship. The case was heard in the Supreme Court of Victoria, where the applicant, Cressy, sought an adjustment of the property interests under Part IX of the Property Law Act 1958 (Vic). Cressy argued that the contributions made by both parties, both financial and non-financial, warranted a re-evaluation of their respective interests in the property. The respondent, Johnson, contested the application, asserting that the contributions did not warrant such an adjustment and that Cressy's claims for damages were unfounded. The court was tasked with determining whether the parties were indeed in a domestic relationship, assessing the nature and extent of the contributions made by each party, and deciding on the validity of Cressy's claims for damages for trespass to goods, lodging a caveat, and abuse of process.

The legal issues that the court needed to address included the definition and application of the term 'domestic relationship' as per the Property Law Act, the criteria for assessing both financial and non-financial contributions, and the circumstances under which a constructive trust might be imposed. Additionally, the court had to consider the validity of Cressy's counterclaims for damages, including the elements of trespass to goods, lodging a caveat, and abuse of process. The court's role was to interpret the relevant statutes and case law to determine the appropriate legal outcomes based on the evidence and arguments presented by both parties.

In its judgment, the court determined that the parties were indeed in a domestic relationship, as defined by the legislation. The court carefully assessed the contributions made by both parties, finding that Cressy's non-financial contributions, such as homemaking and child-rearing, were significant and should be taken into account alongside the financial contributions. The court held that the contributions warranted an adjustment of the property interests in favour of Cressy. However, the court dismissed Cressy's claims for damages, finding that the evidence did not support the allegations of trespass to goods, lodging a caveat, or abuse of process. The court concluded that the parties' agreement on the division of property, as evidenced by their conduct and agreements, was valid and should be upheld.

The court ordered that the property interests be adjusted in favour of Cressy, reflecting the contributions made by both parties. The court also dismissed Cressy's counterclaims for damages, finding that there was insufficient evidence to support the claims. The decision underscored the importance of assessing both financial and non-financial contributions in determining property interests in domestic relationships.

Orders