Dunstan v Rickwood - [2007] NSWCA 147

NEW SOUTH WALES COURT OF APPEAL

CITATION: Dunstan v Rickwood [2007] NSWCA 147
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40031/07

HEARING DATE(S): 15 June 2007

JUDGMENT DATE: 15 June 2007
EX TEMPORE DATE: 15 June 2007

PARTIES:
Ross Dunstan (Appellant)
Julie Anne Rickwood (Respondent)

JUDGMENT OF: Beazley JA Ipp JA McColl JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 942/2005

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 14 December 2006

COUNSEL:
G Brszstowski SC (Appellant)
R Maurice (Respondent)

SOLICITORS:
Crowley Clifford Simpson (Canberra) (Appellant)
Lessli Strong & Associates (Canberra) (Respondent)

CATCHWORDS:

LEGISLATION CITED:
Property (Relationships) Act 1984 (NSW), s 20
Supreme Court Act 1970 (NSW), s 45(4)

CASES CITED:
Kardos v Sarbutt (2006) 34 FamLR 550; [2006] NSWCA 11

DECISION:
1. The appeal is dismissed with costs
2. The trial judge’s order in para 2(b) is to be adjusted under the slip rule, so that in lieu of the amount of $70,750, there should inserted the amount of $29,297
3. Written submissions on the question of costs at first instance are to be filed by the respondent within seven days of today’s date and by the appellant seven days thereafter
4. The parties are to file Short Minutes of Order in the Registry within seven days to take account of the adjustment made in Order 2.

JUDGMENT:

- 5 -

IN THE SUPREME COURT
OF NEW SOUTH WALES

COURT OF APPEAL

CA 40031/07
BEAZLEY JA
IPP JA
McCOLL JA
Ex tempore 15 June 2007

Ross Dunstan v Julie Anne Rickwood

Short reasons for decision

THE COURT: The appeal is dismissed and the Court is of the unanimous opinion that the appeal does not raise any question of general principle.
Pursuant to s 45(4) of the Supreme Court Act 1970 (NSW) the Court’s reasons in short form are these.
The appellant raised effectively thirty grounds of appeal and they were supported by detailed written submissions of senior counsel.
In oral submissions, when dealing with the appellant’s grounds of appeal, senior counsel very appropriately indicated to the Court that there were two essential errors upon which the appellant relied.
The first was that his Honour, in making an order for adjustment of property under s 20 of the Property (Relationships) Act 1984 (NSW) (the Property (Relationships) Act), applied a ratio which was wrong in principle.
The ratio which his Honour applied was one that recognised and replicated the ratio of the assets that each of the parties had and contributed to the relationship at its beginning.
The essential basis for seeking to support that alleged error was that his Honour had inadequately taken into account the fortuitous increase in the value of the property that the appellant had purchased at Mossy Point during the course of the relationship.
His Honour, in dealing with that issue, recognised that that property had increased significantly in value, due to market forces…

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 Dunstan v Rickwood

Details

AGLC: Dunstan v Rickwood [2007] NSWCA 147
Case: [2007] NSWCA 147
Decision Date: 15 June 2007

CaseChat Overview and Summary

The appeal concerned a dispute between Dunstan (appellant) and Rickwood (respondent) before the Court of Appeal of New South Wales. The core of the disagreement related to a property matter, with the appeal being predicated on alleged judicial error by the trial judge.

The Court of Appeal was required to determine whether the trial judge had erred in their previous decision. This involved a review of the factual findings and legal conclusions reached at first instance, particularly concerning the financial aspects of the property dispute.

The Court of Appeal ultimately dismissed the appeal, finding no substantive error in the trial judge's determination. However, the Court did order an adjustment to the trial judge's order under the slip rule, correcting a mathematical error in the quantum of an award. The original amount of $70,750 was amended to $29,297. Further directions were given regarding written submissions on costs at first instance and the filing of Short Minutes of Order to reflect the corrected amount.

Orders

Orders of the court

1. The appeal is dismissed with costs;

2. The trial judge's order in para 2(b) is to be adjusted under the slip rule, so that in lieu of the amount of $70,750, there should inserted the amount of $29,297;

3. Written submissions on the question of costs at first instance are to be filed by the respondent within seven days of today's date and by the appellant seven days thereafter;

4. The parties are to file Short Minutes of Order in the Registry within seven days to take account of the adjustment made in Order 2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.