Delany v Burgess

[2008] HCATrans 189

[2008] HCATrans 189

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S7 of 2008

B e t w e e n -

LEANNE DELANY

Applicant

and

STEPHEN JOHN BURGESS

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 MAY 2008, AT 11.34 AM

Copyright in the High Court of Australia

MR A.G. ROGERS:   May it please the Court, I appear for the applicant.  (instructed by Fitzpatrick Solicitors Pty Ltd)

MR M.P. KEARNEY:   May it please the Court, I appear for the respondent.  (instructed by Browns The Family Lawyers)

GUMMOW J:   Yes, Mr Rogers.

MR ROGERS:   Your Honours, the appeal raises two principle matters and possibly whether an ancillary ‑ ‑ ‑

GUMMOW J:   There seems to be not a large sum of money involved.

MR ROGERS:   No.

GUMMOW J:   I realise the principles may be important to the parties, but nevertheless.

MR ROGERS:   Yes, I can see that, your Honour.  On one view, the amount that her Honour, Justice Beazley, awarded is a large sum but only in the minds, perhaps, of persons outside the legal system.  The two issues which principally arise are, firstly, this is as characterised by Justice Beazley, whether payments made by the equivalent of board by a de facto spouse if in fact had been paid as board should be so characterised when paid by the spouse.

Your Honours will see in the judgment the respondent in fact had boarders.  When the applicant became his de facto she paid board at exactly the same rate, that is, something in the nature of a commercial, if I can put it that way, rate.  The majority in the Court of Appeal characterised that payment as, in substance, a payment for occupation or rent – they were not the words that were used but that is the effect of the majority judgment – and set the payment for the purposes of contributions at nought on the footing that it was not demonstrated that the applicant did not receive a concomitant benefit, that being the occupation of the premises.

It can be said in relation to that, one might say, that given that the applicant was paying precisely what the respondent would have received from a boarder, it must be accepted that she received precisely the benefit if that is the way in which it is to be characterised.  His Honour, the President, in writing the leading judgment appears not to have gone quite that far but said she had received at least as much as she paid.  With respect, that cannot be right.  It must be exactly what she paid.

Her Honour Justice Beazley in the minority at page 56 of the application book about line 52 notes that the mere fact that the applicant was a de facto and not a boarder means that her contributions must be seen in some different light.  That is the first issue, though, whether one can treat the payment as, as it were, simply an occupation payment.

The second issue arises on the assumption that the majority was correct in its characterisation and that is this.  If it is a payment for occupation, can other work which was admittedly done and accepted by the court be valued at zero?  It will be seen in the judgment that there is a period between September 2001 and April 2002 during which the applicant looked after – though it is said by the court not on a permanently full‑time basis as it were – the teenage daughters of the respondent, ceased her own employment which was employment in the order of $30,000 per year, did the lunches, washing and ironing for the teenage daughters.

His Honour the President, in accepting that as the position nevertheless said in finality in his judgment that having regard to the fact that the applicant had received occupation, that that needed to be brought into account in considering whether to value the work which the applicant performed on behalf of the teenage daughters.

The two propositions that we put are these.  The first is that by virtue of the nature of the relationship one would not characterise payments as in the nature of rent.  If that is not so, it would be the somewhat strange consequence that if the applicant had not made a payment in the equivalent of board, it might be thought that on the reasoning of the Court of Appeal the respondent would in fact have had a claim for rent at the end of the relationship.

That seems to be such a surprising proposition and contrary, as one could apprehend, to any determinations that had been made in the past that it can be reasonably accepted, in my respectful submission, that the payment or the relationship and payments made pursuant to the relationship are not to be characterised in the way in which the Court of Appeal would treat them and are more correctly characterised in the way in which her Honour Justice Beazley characterised them.

If that is, as I say, wrong, the alternative proposition is one has to, when that payment is taken out of the equation and the occupation entitlements attribute some value to the work in the last six months, her Honour Justice Beazley attempted, although as she concedes, not in a precisely accurate fashion, to attribute a value to it.  It might be said that it was for only a period of eight months but it nevertheless is a period, as I have indicated, during which the applicant did not obtain or rather ceased employment ‑ ‑ ‑

GUMMOW J:   It is said against you that the matters of which you complain basically are directed to the outcome of this rather broadly conferred discretion under section 20 and do not present any crystallised issue of principle that would attract a grant of special leave.

MR ROGERS:   If the court has wrongly characterised the nature of the payments by the applicant to the respondent, then that is an error of principle.  If it has failed to bring into account – although it is purported to bring into account – work by the applicant in the final eight months of the relationship, that is an error not of principle, but it is an error which affected the exercise of the discretion.

His Honour the President, at the close of his judgment, had this to say.  This appears at page 55 of the application book about line 48.  This is in relation to the work in the last eight months of the relationship:

It is difficult to get a clear appreciation of the extent of the appellant’s contribution in this regard.  It did not entail around the clock assistance and it certainly does not call to be valued at the rates payable to a commercial nanny.  The benefits received by the appellant for residence and other aspects of the relationship need to be factored in to the equation.

I pause there to say this.  If one treats the payments, the board, as a rent payment, they do not need to be factored in if his Honour’s reasoning is otherwise correct.  So his Honour, with respect, if his other reasoning is correct, falls into error in bringing those into account.  There is an exact equivalence between the payment and the benefit received and that means, in substance, that his Honour simply has not valued a discrete part of the relationship between the parties or the work performed by the applicant pursuant to the relationship between the parties.  They are my submissions.

GUMMOW J:   We do not need to call on you, Mr Kearney.

This litigation turned substantially upon the legal significance of various matters of fact concerning the relationship between the parties. We do not see any error of principle by the majority in the New South Wales Court of Appeal in the application of section 20 of the Property Relationships Act 1984 (NSW) to the facts of this case, nor do the interests of justice call for a grant of special leave.

Special leave is refused with costs.

AT 11.44 AM THE MATTER WAS CONCLUDED