Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Davis v Davis [2024] NSWCA 222 Hearing dates: 24 June 2024 Date of orders: 19 September 2024 Decision date: 19 September 2024 Before: White JA at [1];
Kirk JA at [2];
Basten AJA at [113]Decision: (1) Appeal allowed in part.
(2) Set aside orders (1)-(3) and (6) made in the Equity Division on 15 December 2023 and in lieu thereof:
(i) Order that Victor Bernard Davis (the defendant) transfer to Paula Jane Davis (the plaintiff) the whole of his interest in the property [to be formally identified in the order as entered].
(ii) The defendant is to do all such things and execute all such documents which are necessary to transfer the interest referred to in order (i) above.
(iii) Should the defendant default in complying with order (ii) above, the Registrar in Equity is to do all of those things and sign all necessary documents in order to give effect to order (i) above.
(iv) The plaintiff is to pay the defendant $100,000.
(v) Order that each party bear their own costs of the proceedings in the Equity Division.
(3) The respondent is to pay the appellant’s costs of the appeal.
Catchwords: PERSONAL PROPERTY – Property (Relationships) Act 1984 (NSW) – Domestic relationship between father and adult daughter – Deed entered into for father to transfer family house to daughter while retaining continuing right of occupation – Father moved out given dispute with daughter’s son – Error in taking account of inheritance – Error in undervaluing father’s contribution pursuant to the Deed – Incomplete reasoning – Consideration of matters not properly in issue and of little weight – Making of unfair and irrelevant findings – Re-exercise of discretion on appeal
COSTS – Failure to make an offer of compromise not to be held against a party
Legislation Cited: Property (Relationships) Act 1984 (NSW), ss 3(1), 5(1)(b), 8, 9, Pt 3, Pt 4
Cases Cited: Burgess v Moss [2010] NSWCA 139; (2010) 43 Fam LR 260
Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360
Ducker v Smith [2011] NSWCA 212
Dwyer v Kaljo (1987) 11 Fam LR 785
Dwyer v Kaljo (1992) 27 NSWLR 728
Evans v Marmont (1997) NSWLR 70
House v The King [1936] HCA 40; (1936) 55 CLR 499
Howlett v Neilson [2005] NSWCA 149; (2005) 33 Fam LR 402
Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550
Manns v Kennedy [2007] NSWCA 217; (2007) 37 Fam LR 489
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Powell v Supresencia [2003] NSWCA 195; (2003) 30 Fam LR 463
Stephenson v State Bank of New South Wales Ltd (1996) 39 NSWLR 101
Talga Ltd v MBC International Ltd [1976] HCA 22; (1976) 133 CLR 622
Texts Cited: New South Wales, Law Reform Commission, Report on De Facto Relationships,…
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- AGLC
- Davis v Davis [2024] NSWCA 222
- Case
- [2024] NSWCA 222
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the primary judge erred in their assessment of the contributions made by the parties and in their consideration of various factors when making orders concerning the property. Specifically, the court considered whether the primary judge had made errors in accounting for inheritance, undervaluing the father's contribution under the deed, and whether the reasoning was incomplete or relied on irrelevant findings. The court also had to decide on the appropriate orders to be made in light of these considerations.
The Court of Appeal found that the primary judge had erred in several respects, including making findings that were unfair and irrelevant to the issues properly before the court. The court determined that the discretion exercised at first instance was flawed and that it was necessary to re-exercise that discretion. The court allowed the appeal in part, setting aside the original orders. In lieu of those orders, the defendant was to transfer his entire interest in the property to the plaintiff, who was ordered to pay the defendant $100,000. The court also ordered that each party bear their own costs in the Equity Division, but the respondent was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
(1) Appeal allowed in part.
(2) Set aside orders (1)-(3) and (6) made in the Equity Division on 15 December 2023 and in lieu thereof:
(i) Order that Victor Bernard Davis (the defendant) transfer to Paula Jane Davis (the plaintiff) the whole of his interest in the property [to be formally identified in the order as entered].
(ii) The defendant is to do all such things and execute all such documents which are necessary to transfer the interest referred to in order (i) above.
(iii) Should the defendant default in complying with order (ii) above, the Registrar in Equity is to do all of those things and sign all necessary documents in order to give effect to order (i) above.
(iv) The plaintiff is to pay the defendant $100,000.
(v) Order that each party bear their own costs of the proceedings in the Equity Division.
(3) The respondent is to pay the appellant’s costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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