Geoffrey Andrew Smith v Robert Gould - [2014] VSCA 138

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0215

GEOFFREY ANDREW SMITH	Appellant
	v
ROBERT GOULD	Respondent

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JUDGES	WARREN CJ, OSBORN and BEACH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 and 28 May 2014
DATE OF JUDGMENT	27 June 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 138
JUDGMENT APPEALED FROM	Smith v Gould [2012] VSC 461 (Dixon J) Smith v Gould (No 2) [2012] VSC 541 (Dixon J)

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PROPERTY – Former de facto partners – Adjustment of property interests pursuant to s 285 of the Property Law Act 1958 – Financial and welfare contributions by both parties – Divisible pool of assets – Contributions – Valuation – Adjustments – Costs – Armory v Delamirie (1722) 1 Str 505; 93 ER 664 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Kendall QC with Dr P Vout	Slater & Gordon Limited
For the Respondent	Mr S Wilson QC with Mr P Herzfeld	HWL Ebsworth Lawyers

WARREN CJ:
OSBORN JA:
BEACH JA:

Introduction

Between April 1990 and June 2004, Mr Geoffrey Smith and Mr Robert Gould were domestic partners in a domestic relationship within the meaning of the now repealed provisions of pt IX of the Property Law Act 1958 (‘the Act’).

In the proceeding below, Mr Smith (as plaintiff) sought an order adjusting the interests of Mr Smith and Mr Gould pursuant to the provisions of the now repealed s 285 of the Act. Section 285 relevantly provided:

285 Order for adjustment
(1)A court may make an order adjusting the interests of the domestic partners in the property of one or both of them that seems just and equitable to it having regard to—
(a)the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to the acquisition, conservation or improvement of any of the property or to the financial resources of one or both of the partners; and
(b)the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the domestic partners to the welfare of the other domestic partner or to the welfare of the family constituted by the partners and one or more of the following—
(i) a child of the partners;
(ii)a child accepted by one or both of the partners into their household, whether or not the child is a child of either of the partners; and

(c)any written agreement entered into by the domestic partners.

Following a 27 day trial, a judge of the Trial Division held that the value of the pool of assets to be divided between the parties was $22,827,416. The judge then fixed Mr Smith’s share of the divisible pool of assets at $3 million, and declared that the value of the adjustments in the divisible property of the relationship since the parties separated was $2,956,989. In the result, the judge ordered Mr Gould to pay Mr Smith the sum of $43,011.

Following further argument, the trial judge made costs orders as follows:
1.The…

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: [2014] VSCA 138
Decision Date: 27 June 2014

CaseChat Overview and Summary

Geoffrey Andrew Smith sought a property adjustment under section 285 of the Property Law Act 1958 against his former de facto partner, Robert Gould. Smith argued for an adjustment of the property interests held by both parties to reflect their financial and welfare contributions during their relationship. The dispute was heard by the Supreme Court of Victoria. The central legal issue was whether the court could make an adjustment to the property interests of the parties based on their respective contributions, both financial and otherwise, during their de facto relationship.

The court examined the contributions made by each party, including financial support, homemaking, and childcare, and considered how these contributions impacted the divisible pool of assets. The court applied the principles established in Armory v Delamirie, determining that the contributions made by each party should be valued and included in the divisible pool of assets. The court also considered the costs associated with the proceedings and the implications of these costs on the final outcome.

In its decision, the court found that both parties had made significant contributions to the relationship, and these contributions should be reflected in the division of property. The court adjusted the property interests accordingly, ensuring that the final distribution of assets was equitable. The court also made an order regarding the costs of the proceedings, reflecting on the circumstances of the case and the contributions made by both parties. This decision provided clarity on the application of section 285 of the Property Law Act 1958 in cases involving former de facto partners and the importance of considering all contributions when adjusting property interests.

Orders