Hayes v Marquis

Case [2008] NSWCA 10



New South Wales


Court of Appeal


CITATION: Hayes v Marquis [2008] NSWCA 10
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 16 May 2007
 
JUDGMENT DATE: 

22 February 2008
JUDGMENT OF: Beazley JA at 1; McColl JA at 19; Einstein J at 151
DECISION: 1 Appeal allowed. 2. Set aside the verdict in favour of the respondent in the sum of $120,000. 3. Order that there be judgment for the respondent in the sum of $100,000. 4. Order that each party pay his and her own costs of the appeal.
CATCHWORDS: FAMILY LAW AND CHILD WELFARE – Property (Relationships) Act 1984 – s 5(1)(b) – whether parties in a "close personal relationship" where not living continuously in the same house – whether "personal care" in s 5(1)(b) includes emotional support – relevance to determination of relationship of non-disclosure of cohabitation to government authorities – adjustment of property interests – failure to take into account part of appellant’s assets – obligation of parties to property relationship proceedings to make full and frank disclosure of relevant financial circumstances.
LEGISLATION CITED: Civil Procedure Act 2005
De Facto Relationships Act 1984
Family Provision Act 1982
Property (Relationships) Act 1984
Property (Relationships) Legislation Amendment Act 1999
Uniform Civil Procedure Rules 2005
CATEGORY: Principal judgment
CASES CITED: Armory v Delamirie (1722) 1 Stra 505; (1722) 93 ER 664
Bar-Mordecai v Hillston [2004] NSWCA 65
Barnes v De Jesus [2001] NSWSC 19
Bilous v Mudaliar [2006] NSWCA 38
Black v Black (1991) 15 Fam LR 109
Burden v Cottee (Supreme Court of New South Wales, Bryson J, 31 July 1998, unreported)
Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360
Davey v Lee (1990) 13 Fam LR 688
Dridi v Fillmore [2001] NSWSC 319
Dunstan v Rickwood (No 2) [2007] NSWCA 266
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Fung v Ye [2007] NSWCA 115
Government Insurance Office of New South Wales v Rozniak (1992) 27 NSWLR 665
Greenwood v Merkel [2004] NSWSC 43
House v R [1936] HCA 40; (1936) 55 CLR 499
Howlett v Neilson [2005] NSWCA 149
Hughes v Egger [2005] NSWSC 18
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711
Kardos v Sarbutt [2006] NSWCA 11
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Mcdonald v Stelzer [2000] NSWCA 302; (2001) 27 Fam LR 304
Manns v Kennedy [2007] NSWCA 217
Metropolitan Water Sewerage & Drainage Board v Histon [1982] 2 NSWLR 720
O’Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601
Paino v Paino [2006] NSWSC 218
Petersen v Gregory [2007] NSWSC 8
PY v CY [2005] QCA 247
Re Fagan Deceased [1980] 5 Fam LR 813
Roy v Sturgeon (1986)

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AGLC
Hayes v Marquis [2008] NSWCA 10
Case
[2008] NSWCA 10
Decision Date

CaseChat Overview and Summary

In *Hayes v Marquis*, the New South Wales Court of Appeal considered a dispute concerning the adjustment of property interests between the parties, who were in a de facto relationship. The central issue was whether the parties qualified as being in a "close personal relationship" under the *Property (Relationships) Act 1984* (NSW), particularly given that they did not live continuously in the same house.

The court was required to determine whether the definition of "personal care" within section 5(1)(b) of the Act encompassed emotional support, and how the non-disclosure of their cohabitation to government authorities was relevant to the determination of their property relationship. Furthermore, the court had to consider whether the original decision had failed to take into account a portion of the appellant's assets when adjusting the property interests.

The Court of Appeal found that the parties did indeed constitute a de facto relationship under the Act, and that "personal care" extended beyond physical assistance to include emotional support. The court also held that the failure of the parties to make full and frank disclosure of their financial circumstances, including their cohabitation, was a significant factor. The court allowed the appeal, setting aside the original verdict of $120,000 in favour of the respondent and ordering judgment for the respondent in the sum of $100,000. Each party was ordered to bear their own costs of the appeal.

Orders

Orders of the court

1 Appeal allowed. 2. Set aside the verdict in favour of the respondent in the sum of $120,000. 3. Order that there be judgment for the respondent in the sum of $100,000. 4. Order that each party pay his and her own costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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