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

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…

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 Delany v Burgess

Details

AGLC: Delany v Burgess [2008] HCATrans 189
Case: [2008] HCATrans 189
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the dispute between Delany (the appellant) and Burgess (the respondent) concerning the interpretation and application of a restrictive covenant affecting land. The covenant, registered on the title of the appellant's property, prohibited the erection of any building other than a single private dwelling house. The appellant sought a declaration that a proposed subdivision of their land into two lots, each intended to accommodate a single dwelling, did not breach the covenant.

The central legal issue before the High Court was whether the registration of a plan of subdivision, which divided the appellant's land into two separate lots, constituted the erection of more than one dwelling house on the land, thereby breaching the restrictive covenant. The court was required to determine the proper construction of the covenant in light of the subdivision and the intended use of the divided parcels.

Gummow and Heydon JJ reasoned that the covenant operated by reference to the land as a whole, not to individual lots created by a subsequent subdivision. They held that the covenant prohibited the erection of more than one dwelling house on the *land* as it existed at the time the covenant was imposed. The act of subdividing the land did not, in itself, constitute the erection of a building. Therefore, the proposed subdivision, which would allow for the erection of a single dwelling on each of the two new lots, did not breach the covenant, as the covenant did not prevent the division of the land and the subsequent erection of a single dwelling on each resultant parcel, provided no more than one dwelling was erected on the original parcel of land.

The High Court allowed the appeal and made declarations that the proposed subdivision and the erection of a single dwelling on each of the two resultant lots would not breach the restrictive covenant.

Orders