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 which had increased the land value of that property significantly.
His Honour also recognised that the property that the parties shared at Ainslie, which was a property which the respondent had brought into the relationship and in respect of which there had been a subsequent adjustment of interests, had also increased in value, although his Honour recognised that it had not increased in value to the same degree.
Notwithstanding that increase in value and after his Honour had made reference to Kardos v Sarbutt (2006) 34 FamLR 550; [2006] NSWCA 11, his Honour made a factual finding in these terms. He said:
“… I would find that the [respondent] made the more significant contribution to the relationship in ways I have explained elsewhere. At the same time the total value of the [appellant’s] separate property increased significantly, because his position in the relationship entitled him to increase substantially his interest in superannuation and to acquire the property at Mossy Point. I have found that the [appellant’s] income was so significantly greater than that of the [respondent] during the relationship, and as a result the relative superannuation entitlements of the parties are now so disparate, that justice and equity require an adjustment. The [appellant] was able to acquire the Mossy Point property as a result of the relationship.”
The Court finds no error of fact in relation to that finding and as that was the only point that underpinned the appellant’s submission that his Honour, as a matter of principle, applied a wrong ratio to the ultimate adjustment of property interest between the parties, we consider that that error has not been made out and it would follow all the supporting grounds of appeal would be rejected.
The second error upon which the appellant relied was that his Honour had made an adjustment in an amount of $17,000 in the respondent’s favour because of the poor quality of the appellant’s workmanship in respect of renovations undertaken by him on the Ainslie property.
The adjustment would have resulted in an error of about 1.2 per cent. However, the appellant’s complaint is that there had been a double counting in that regard.
In our opinion there is not an error of double counting.
His Honour had to take into account a number of factors in relation to the renovations to the property. That was one of them. He chose to deal with it in a particular way, as he was entitled to, as a matter of the exercise of his discretion.
There were other matters, in any event, in which his Honour could have made adjustments one way or the other.
At the end of the day the discretion which is exercised under s 20 of the Property (Relationships) Act involves an evaluation and we see no error of principle that requires correction and the Court would not otherwise allow an appeal for a matter which in the totality is of quite minor, if not miniscule, proportions.
The parties are agreed that his Honour made a number of mathematical errors when making his adjustment and in reaching the final Orders he made.
Because of those mathematical errors there was also error in the amount of interest which was payable.
The parties are in agreement as to the result of the correction of those mathematical errors, which result in an adjustment to the respondent in an amount of $29,297, rather than an adjustment to her in the sum of $70,750, as was ordered by his Honour.
Subject to one matter, those matters of adjustment were recognised by the respondent when pointed out to her and it was her submission that they should have been dealt with under the slip rule before his Honour.
We agree that they were errors of the type that were appropriately dealt with under the slip rule and in circumstances where no other error has been demonstrated which would require appellate interference with his Honour’s Orders, that is the way that we propose to deal with them.
The one matter to which we should make mention is this.
There was an error which was identified at the beginning of senior counsel for the appellant’s submissions relating to shares.
He very correctly again brought those to the Court’s attention. He pointed out a difficulty with including the shares in the assessment, because the only value that the parties had in respect of the shares were the 2006 values. His Honour had approached the adjustment of the properties on the basement of values at the time of separation in 2002.
The trial judge did not have the 2002 values before him.
The shares in question were Telstra and ANZ shares with a value of just over $44,500 in total.
The parties are agreed that, to the extent that there is a difference in value between the 2002 values and the present values, it is small. For that reason, we do not see any basis for making an adjustment in relation to the differential in value by taking into account the difference between the 2006 time of hearing valuations and the 2002 valuations.
Accordingly, the Orders that the Court makes are these:
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.
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AMENDMENTS:

22/06/2007 - Typographical error - Paragraph(s) Cover sheet

LAST UPDATED: 22 June 2007