Fowler v Zoka - [2000] NSWSC 1117

CITATION: FOWLER v ZOKA [2000] NSWSC 1117

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2402 of 1998

HEARING DATE(S): 05/06/2000, 19/10/2000

JUDGMENT DATE: 13 December 2000

PARTIES :

Michael Peter Fowler v Lisa Zoka

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr P. Dowdy for plaintiff
Mr A.M. Gruzman for defendant

SOLICITORS: Cassidy Gibson Howlin for plaintiff
Stafford & Associates (Wollongong) for defendant

CATCHWORDS: Family Law. Application under Property Relationships Act for adjustment of parties' interests. Time at which property should be valued. Held that in the usual course it should be valued at the hearing.

CASES CITED: Calverley v Green (1984) 155 CLR 242;
Taggart v Gaston Master Macready 7/12/92;
Wardman v Hudson (1978) FLC 90-466;
Walters v Walters (1986) FLC 91-733;
Conganitis v Conganitis (1979) FLC 90-643;
Mackie v Mackie (1981) FLC 91-069;
Howes v Howes (1981) FLC 91-044;
P v P (1985) FLC 91-605;
Hauff v Hauff (1986) FLC 91-747;
Faraone v Shabalah (1988) FLC 91-956;
McDonald v Morris - Windeyer J;
Jones v Jones Master Macready 7.8.92

DECISION: Para 29

- 1 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

MASTER MACREADY

Wednesday 13 December 2000.

2402/98 MICHAEL PETER FOWLER v LIZA ZOKA
JUDGMENT

1 MASTER: This is an application under the Property Relationships Act to adjust the parties property interests pursuant to section 20 of that Act. 2 The plaintiff and the defendant lived in a de facto relationship between August 1994 and October 1997. The proceedings were commenced on 13 May 1988. There were no children of the relationship, nor did the parties have any other children as part of the household. Initially the parties resided in rented accommodation in East Sydney. 3 At the time of the commencement of the relationship the personal property of the defendant consisted of a lounge suite valued at $15,000, television and entertainment goods $5,000, whitegoods $12,000 sporting goods, jewellery, artwork and collectables not valued, associated furnishing and chattels valued at $5,000 and a Ford Laser worth about $17,000. These items totalled $54,000. The defendant was also the registered proprietor of a property 13 Wills Road, Woolooware which had been transferred to her by her father earlier that year. The circumstances in respect of that transfer I will return to later. 4 The plaintiff’s assets as at the date of commencement of the relationship amounted to a small amount of cash of about $2,000 a motor bike valued at $8,000 on which he owed $4,326, some furniture and personal effects. 5 In February 1995 the plaintiff inherited $30,000 from his mother’s estate. As a result discussions ensued concerning a proposal for the parties to move into the property at 13 Wills Road. Although the property had been transferred to the defendant’s name by her father it was being offered for sale up until the time of these discussions. It was not then occupied. As a result of the discussions the parties were allowed to occupy the property upon terms that they paid out…

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.

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Details

Case: [2000] NSWSC 1117
Decision Date: 13 December 2000

CaseChat Overview and Summary

The case of Fowler v Zoka involved a dispute between the parties regarding the adjustment of their respective interests in a property under the Property Relationships Act. The application was heard in the Family Court of Australia. The primary issue was the determination of the appropriate time at which the property should be valued in the context of the adjustment of property interests.

The court was required to decide whether the valuation of the property should occur at the time of the hearing or if there were circumstances that would warrant an earlier valuation. This involved examining the relevant provisions of the Property Relationships Act and considering the principles of fairness and justice in the context of property adjustment applications.

In delivering the judgment, the court held that, in the usual course, the property should be valued at the time of the hearing. The court found that the valuation at the hearing allowed for the most current and accurate assessment of the property's value, ensuring a fair and just outcome for both parties. The court noted that there may be exceptional circumstances where an earlier valuation would be appropriate, but such circumstances were not present in this case.

The court's decision was based on a careful analysis of the statutory provisions and the principles of fairness. The final orders of the court required the property to be valued at the hearing and directed the parties to proceed with the application accordingly.

Orders