Cusick v Savage - [2008] NSWSC 212

CITATION: Cusick v Savage [2008] NSWSC 212

HEARING DATE(S): 06/03/08

JUDGMENT DATE :
13 March 2008

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Orders to be made under Conveyancing Act 1919, s 66G

CATCHWORDS: FAMILY LAW - de facto relationships - existing orders of District Court adjusting parties' interests in property under Property (Relationships) Act - one such order that jointly owned property be sold and proceeds be applied in stated manner - plaintiff unable to obtain benefit of order - jurisdiction of Supreme Court to act in aid of and be auxiliary to District Court in matters under Property (Relationships) Act - REAL PROPERTY - land in co-ownership - orders appointing trustees for sale - variation of statutory trusts for sale

LEGISLATION CITED: Conveyancing Act 1919, ss 66F(1), 66F(2)(a), 66G
District Court Act 1973, s 134(1)(g)
Property (Relationships) Act 1984, ss 9, 13, 20(1)
Uniform Civil Procedure Rules 2005, rule 27.1

CATEGORY: Principal judgment

CASES CITED: Ayres v Evans (1981) 39 ALR 129
Forgeard v Shanahan (1994) 35 NSWLR 206
Grizonic v Suttor [2006] NSWSC 1359
Hall v Woolf [1908] HCA 74; (1908) 7 CLR 207
Permanent Trustee Co Ltd v Commissioner of Stamp Duties (1986) 4 NSWLR 652
R v Frazer [1977] 2 NSWLR 867
Re Fettell (1952) 52 SR (NSW) 221
Toyama Pty Ltd v Landmark Building Developments Pty Ltd [2006] NSWSC 83
Whitehead v Whitehead [2002] NSWSC 486; (2003) NSW Conv R 56-045

PARTIES: Michelle Cusick - Plaintiff
Aaron John Savage - Defendant

FILE NUMBER(S): SC 6209/07

COUNSEL: Mr M G Y Wong - Plaintiff

SOLICITORS: Federation Legal Services - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY, 13 MARCH 2008

6209/07 MICHELLE CUSICK v AARON JOHN SAVAGE

JUDGMENT

1 These proceedings initiated by summons filed on 21 December 2007 arise in unusual circumstances.

2 The plaintiff and the defendant were formerly parties to a domestic relationship within the purview of the Property (Relationships) Act 1984. The plaintiff brought proceedings under that Act seeking orders adjusting interests in property. The proceedings were commenced in the District Court of New South Wales upon which relevant jurisdiction is conferred by s 134(1)(g) of the District Court Act 1973. The parties reached a compromise and certain consent orders were made by the District Court at Bathurst on 9 March 2007.

3 The orders included orders concerning a residential property at Bathurst of which the plaintiff and the defendant are registered as proprietors as joint tenants. Among those orders were

(a) an order requiring the defendant to pay the plaintiff within 56 days a sum of $73,000 (Order 1);

(b) an order for the payment of interest on that sum if not duly paid (Order 2);

(c) an order requiring the plaintiff, upon payment of the sum of $73,000, to transfer to the defendant the whole of her interest in the residential property; and

(d) an order that, simultaneously with that transfer, the defendant discharge the mortgage over the property (Order…

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 Cusick v Savage

Details

AGLC: Cusick v Savage [2008] NSWSC 212
Case: [2008] NSWSC 212
Decision Date: 13 March 2008

CaseChat Overview and Summary

In Cusick v Savage, the parties were a de facto couple who had previously been the subject of property adjustment orders under the Property (Relationships) Act. The dispute before the Supreme Court concerned the enforcement and interpretation of these orders, specifically whether the Court could intervene to ensure the plaintiff received her entitled benefit from the sale of jointly owned property. The Supreme Court was called upon to determine its jurisdiction to act in aid of and be auxiliary to the District Court in such matters.

The central legal issue was whether the Supreme Court had the authority to intervene in an existing District Court order concerning property interests under the Property (Relationships) Act. The plaintiff argued that she had been unable to obtain the benefit of the District Court's order, which required the jointly owned property to be sold and the proceeds to be applied in a specified manner. The court needed to consider whether it could grant orders to appoint trustees for the sale of the land and vary the statutory trusts for this purpose.

The Supreme Court found that it did indeed have the jurisdiction to act in aid of the District Court in matters under the Property (Relationships) Act. The Court held that where a party to a de facto relationship is unable to obtain the benefit of an existing order, the Supreme Court could intervene to ensure that the order was properly carried out. This included appointing trustees for the sale of the land and varying the statutory trusts as necessary. The Court emphasised its role as auxiliary to the District Court in enforcing and interpreting such orders. Consequently, the Supreme Court made orders appointing trustees for the sale of the jointly owned property and varying the statutory trusts accordingly.

Orders