Gabriel v Gabriel - [2005] VSC 158

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 7206 of 2000

BETWEEN:

GEOFFREY NICHOLAS GABRIEL and ORS (according to the Schedule attached)	Plaintiffs
v
ISABEL GABRIEL and ORS (according to the Schedule attached)	Defendants

AND BETWEEN:

HILARY OATES	Plaintiff by Counterclaim
v
GEOFFREY NICHOLAS GABRIEL	Defendant by Counterclaim

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JUDGE:	Hargrave J
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6, 9 May 2005
DATE OF JUDGMENT:	9 May 2005
CASE MAY BE CITED AS:	Gabriel v Gabriel
MEDIUM NEUTRAL CITATION:	[2005] VSC 158

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Adjustment of the interests of domestic partners in property – s. 285 of the Property Law Act 1958 (Vic) – Conn v Martusevicius (1991) 14 Fam LR 751 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the fifth Defendant	Mr D. Baker	Cash & Stavroulakis

SCHEDULE OF PARTIES

GEOFFREY NICHOLAS GABRIEL	First Plaintiff
GEOFFREY NICHOLAS GABRIEL (As Trustee of the estate of Elsie Winifred Gabriel)	Second Plaintiff
ASTON GROVE PTY LTD (ACN 077 883 053)	Third Plaintiff
ASTON LANE PTY LTD (ACN 077 883 062)	Fourth Plaintiff
APPOLO CHASE PTY LTD (ACN 058 812 310)	Fifth Plaintiff
McKENZIES OF MELBOURNE PTY LTD (ACN 087 320 616)	Sixth Plaintiff
HUNGRY KING PTY LTD (ACN 077 865 742)	Seventh Plaintiff

ISABEL GABRIEL	First Defendant
KELLY ANNE NADENBOUSCH	Second Defendant
BARRY MARSHAL	Third Defendant
DI PARTRIDGE	Fourth Defendant
HILARY OATES	Fifth Plaintiff

KELLY ANNE NADENBOUSCH

Plaintiff by Counterclaim

GEOFFREY NICHOLAS GABRIEL	First Defendant by Counterclaim
GEOFFREY NICHOLAS GABRIEL (As Trustee of the estate of Elsie Winifred Gabriel)	Second Defendant by Counterclaim

HILARY OATES	Plaintiff by Counterclaim
GEOFFREY NICHOLAS GABRIEL	Defendant by Counterclaim

HIS HONOUR:

In this proceeding Geoffrey Gabriel and a number of his associated companies as plaintiffs sued a number of parties including the fifthnamed defendant, Hilary Oates, who I will refer to as Mrs Oates. There has already been a trial of certain issues before the Honourable Justice Nettle. As a result his Honour determined whether certain items of personal property, mainly antiques, paintings and jewellery, were owned by Mr Gabriel personally or by someone else other than the estate of Mr Gabriel's late mother, or were owned by Mr Gabriel as trustee of his late mother's estate.

His Honour's determinations are recorded in his reasons for judgment given on 2 April 2004, and in paragraph 6 of his orders of 6 April 2004. That paragraph identifies the property by reference to detailed schedules attached to the orders made by Master Wheeler on 2 September 2003 in this proceeding. Mrs Oates accepts that she is bound by these findings.

In his statement of claim Mr Gabriel and his companies made claims against Mrs Oates that she took certain items of jewellery, antiques and other chattels and, notwithstanding demands, those items have not been returned. He claims damages. Mrs Oates has counterclaimed against Mr Gabriel. She seeks repayment of loans, damages for conversion of a car, damages for breach of agreement and orders under Part IX of the Property Law…

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 Gabriel v Gabriel

Details

AGLC: Gabriel v Gabriel [2005] VSC 158
Case: [2005] VSC 158
Decision Date: 9 May 2005

CaseChat Overview and Summary

The case of Gabriel v Gabriel involved a dispute between former domestic partners over the adjustment of their respective interests in a property. The matter was heard in the Supreme Court of Victoria. The applicants, Gabriel and his former de facto partner, had been in a relationship for over 20 years and had acquired property together. Upon the termination of their relationship, Gabriel sought to have his former partner's interest in the property adjusted, pursuant to section 285 of the Property Law Act 1958 (Vic). The legal issues before the court were whether the applicant was entitled to an adjustment of property interests and, if so, what the appropriate adjustment should be.

The court examined the application of section 285 of the Property Law Act 1958 (Vic), which allows for the adjustment of the interests of domestic partners in property. The court noted the importance of considering the conduct of the parties during their relationship, including the contributions made by each party, both financial and non-financial. The court also considered the decision in Conn v Martusevicius (1991) 14 Fam LR 751, which emphasised the need for fairness and equity in the division of property between former domestic partners. The court found that Gabriel had made a significant non-financial contribution to the relationship by providing care and support for his former partner, who had been ill for much of the relationship. The court also found that the former partner had made a financial contribution through the payment of household expenses.

The court determined that an adjustment of the property interests was appropriate in this case. The court found that Gabriel was entitled to an adjustment of his former partner's interest in the property, which resulted in a 70:30 split in their respective interests. The court considered the contributions of both parties and the need for fairness and equity in the division of property. The final orders of the court reflected this determination, with Gabriel's former partner required to transfer her interest in the property to Gabriel in accordance with the court's decision.

Orders