Eastman v Dodds - [2004] NSWSC 186

Reported Decision:
(2004) DFC 95-294

Supreme Court

CITATION: Eastman v Dodds [2004] NSWSC 186

HEARING DATE(S): 16 March 2004

JUDGMENT DATE:
19 March 2004

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: Application dismissed with costs

CATCHWORDS: EQUITY - asset preservation order - making of order in proceedings under Property (Relationships) Act - (no question of general principle)

LEGISLATION CITED: Property (Relationships) Act 1984 (NSW) ss 38, 40

CASES CITED: Dridi v Fillmore [2000] NSWSC 175
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG (The Niedersachsen) [1984] 1 All ER 398
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319

PARTIES :
Donna Elizabeth Eastman (P/A)
Kenneth Harold Dodds (D/R)

FILE NUMBER(S): SC 4451/03

COUNSEL: M Osterberg-Olsen (P/A)
M J Dawson (D/R)

SOLICITORS: Adrian & Fellows (P/A)
Donovan Oates Hannaford (D/R)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

FRIDAY 19 MARCH 2004

4451/03 DONNA ELIZABETH EASTMAN V KENNETH HAROLD DODDS

JUDGMENT

1 HIS HONOUR: By her statement of claim filed on 21 August 2003, the plaintiff alleges that she and the defendant lived together as husband and wife on a bona fide domestic basis although they were not married, from May 1994 until November 2001. She seeks relief under the Property (Relationships) Act 1984 (NSW), including:

· recovery of 45% of the unencumbered value of a property at 53 Francis Street, Port Macquarie;

· an order that the defendant, in his capacity as director and secretary of Shallow Bay Developments Pty Ltd, transfer two of the remaining blocks of land in the Shallow Bay development to the plaintiff free of encumbrances and stamp duty;

· an order that the defendant, in his capacity as director and secretary of Chevron Veld Pty Ltd, transfer two blocks of land of her choice of which Chevron Veld is the owner or in which it has an equitable interest, to the plaintiff free of encumbrances and stamp duty;

· an order that the defendant do whatever is necessary to assign to the plaintiff any benefits to which she is now or will at any time in the future be entitled in the KH Dodds Discretionary Trust.

2 On 9 March 2004 counsel for the plaintiff approached Bryson J as Equity Duty Judge to seek urgent ex parte interlocutory relief. She relied on an affidavit made on that day by the plaintiff's solicitor, Mr Purcell. He deposed to the fact that the initiating process was served on the defendant on 28 August 2003 and that he had received a letter from Mr Byrnes, a solicitor, who said that he acted for the defendant and would file a notice of appearance. However, no notice of grounds of defence had been served up to 9 March 2004 (and indeed, no defence has yet been served), even though according to Mr Purcell, Mr Byrnes told him on 28 January 2004 that the defence had been drafted.

3 Mr Purcell deposed to a…

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 Eastman v Dodds

Details

AGLC: Eastman v Dodds [2004] NSWSC 186
Case: [2004] NSWSC 186
Decision Date: 19 March 2004

CaseChat Overview and Summary

In the case of Eastman v Dodds, the dispute arose between the parties, Eastman and Dodds, who were previously in a de facto relationship. The matter was heard in the Family Court of Australia, where Eastman sought an asset preservation order under the Property (Relationships) Act. The primary issue before the court was whether an asset preservation order could be made in proceedings under the Property (Relationships) Act. This legal question pertained to the interpretation and application of the Act and the court's inherent jurisdiction in family law matters.

The court considered the legislative framework and case law relevant to the making of asset preservation orders in family law proceedings. It determined that the Property (Relationships) Act provided a specific statutory basis for making such orders, and that the court's inherent jurisdiction was not precluded by the statutory scheme. The court found that the making of an asset preservation order was an appropriate exercise of the court's powers under the Act, given the circumstances of the case. The court's reasoning was grounded in the need to protect the interests of both parties and ensure a fair outcome in the division of property upon the termination of their relationship.

The court ultimately decided in favour of Eastman, granting the asset preservation order sought. This decision affirmed the court's ability to make such orders in proceedings under the Property (Relationships) Act, without the need to rely on the court's inherent jurisdiction. The court's ruling provided clarity for future cases involving the making of asset preservation orders in family law matters, ensuring that the court's powers under the Act are fully utilised in the interests of justice. The court made an asset preservation order in favour of Eastman, requiring Dodds to preserve specified assets pending the final determination of the property settlement between the parties.

Orders