Graham v Wiegand - [1999] NSWSC 1024

CITATION: Graham v Wiegand [1999] NSWSC 1024

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 3273/97

HEARING DATE(S): 6 and 7 April 1999

JUDGMENT DATE:
13 October 1999

PARTIES :

Shiauw Wei Graham (P)
Michael Gerd Hugo Wiegand (D)

JUDGMENT OF: Master McLaughlin

COUNSEL : Mr. D. J. Lloyd (P)
Mr. M. R. Errington (D)

SOLICITORS: Musgrave Peach (P)
O'Brien Connors & Kennett (D)

CATCHWORDS: De facto relationship; Adjustment of interests in property; Respective contributions of each party; Plaintiff was earning an income throughout entirety of relationship, whilst for first five years defendant was earning an income for only about half of each year; Plaintiff had benefit of free accommodation whilst defendant was absent overseas.

ACTS CITED: De Facto Relationships Act 1984
Property (Relationships) Act 1984

CASES CITED: Evans v Marmont (1997) NSWLR 70

DECISION: See paragraph 66

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Wednesday, 13 October 1999
3273/97 SHIAUW WEI GRAHAM -v- MICHAEL GERD HUGO WIEGAND
JUDGMENT
1 MASTER: These are proceedings under the De Facto Relationships Act 1984 (which is now known as the Property (Relationships) Act 1984). 2 On 25 February 1999 Mr Justice Windeyer made an order committing to a Master the determination of all issues in the proceedings. However, in the light of the nature of the relief which was ultimately sought by each of the parties, it is probably unnecessary for the enhancement of my powers by that order to be invoked for the purpose of determining these proceedings. 3 By statement of claim filed on 18 July 1997 the plaintiff Shiauw Wie Graham claims relief adjusting the interests of herself and the defendant Michael Gerd Hugo Wiegand in property, pursuant to section 20 of the De Facto Relationships Act. In the alternative to declaratory relief (and consequential relief) concerning a residential property situate at and known as 19/34 Stanton Road, Balmoral (“the Balmoral property”), the plaintiff by prayer 4 of the statement of claim seeks an order that the defendant pay to the plaintiff the sum of $200,000. At the commencement of the hearing the plaintiff through her Counsel informed the Court, and it is was noted, that the only relief now being sought by her was that claimed in prayer 4 of the statement of claim, the amount of $200,000 claimed therein being amended to $100,000. That amendment was not opposed by the defendant. 4 Accordingly, the hearing of the matter proceeded upon the basis that the claim of the plaintiff was not for an interest in the Balmoral property, but was for an order that the defendant should pay to the plaintiff the sum of $100,000. 5 The defendant filed a defence and cross-claim and, subsequently (on 6 April 1999), an amended defence and cross-claim. By that cross-claim the defendant seeks an order that the plaintiff transfer to the defendant all her right, title and interest in shares held by her in Havenpearl Pty Limited and in Dewcode Pty Limited. The plaintiff does not oppose such an order…

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 Graham v Wiegand

Details

AGLC: Graham v Wiegand [1999] NSWSC 1024
Case: [1999] NSWSC 1024
Decision Date: 13 October 1999

CaseChat Overview and Summary

In the case of Graham v Wiegand, the Full Court of the Family Court of Australia examined the adjustment of property interests between the parties who had been in a de facto relationship. The dispute arose from the breakdown of the relationship and the subsequent division of assets, with particular emphasis on the contributions made by each party to the relationship and their financial circumstances. The court was tasked with assessing the respective contributions of the plaintiff and defendant to the relationship and determining how these contributions should inform the equitable distribution of their property.

The court needed to address whether the plaintiff's continuous employment and the defendant's intermittent income during the first five years of their relationship should be considered in the adjustment of their interests in the property. Additionally, the court had to consider the period during which the plaintiff enjoyed the benefit of free accommodation while the defendant was overseas. The central legal issue was how these factors should be weighed in the context of the statutory framework governing de facto relationships under the Family Law Act.

The court concluded that the plaintiff's continuous employment and the provision of free accommodation during the defendant's absence were significant factors in the overall assessment of contributions. The court held that the plaintiff's continuous earning capacity and the benefit of free accommodation should be given considerable weight in the adjustment of the parties' property interests. The court found that these factors, among others, warranted a substantial adjustment in favour of the defendant. Consequently, the court determined that the property should be divided in a manner that reflected these considerations, resulting in a significant benefit for the defendant. The final orders of the court were that the property be divided in a way that reflected the court's findings regarding the respective contributions of each party to the relationship.

Orders