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Howell v Fiorenza

Howell v Fiorenza

Case [2008] NSWSC 163 3 March 2008

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CITATION: HOWELL v FIORENZA [2008] NSWSC 163

HEARING DATE(S): 7, 8 June 2007; 27 July 2007; 24 August 2007

JUDGMENT DATE :
3 March 2008

JURISDICTION: Equity

JUDGMENT OF: Hall J at 1

DECISION: (a) An order in favour of the plaintiff against the defendant representing his adjusted interest in the property, Lot 13 Old Northern Road, Laguna, pursuant to s.20(1) of the Property (Relationships) Act 1984 in the amount of $45,000. (b) That there be an equitable charge on the property referred to in (a) for that amount.

LEGISLATION CITED: Property (Relationships) Act 1984
Family Law Act 1975
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Bilous v Mudaliar & Anor (2005) 65 NSWLR 615
Black v. Black (1991) 15 Fam. LR 109
Chanter v Catts (2005) 64 NSWLR 360
Davey v Lee (1990) 13 Fam LR 688
Del Gallo v Frederiksen (2000) 27 Fam LR 162
Dwyer v Kaljo (1987) Fam LR 785
Evans v Marmont (1997) 42 NSWLR 70
Green v. Robinson (1995) 36 NSWLR 96
Kardos v Sarbutt [2006] NSWCA 11
Mallet v. Mallet (1984) 156 CLR 605
Powell v. Supresencia (2003) 30 Fam LR 463
Sullman v Sullman [2002] NSWSC 169
Wallace v Stanford (1995) 37 NSWLR 1

PARTIES: Iain HOWELL v Irene FIORENZA

FILE NUMBER(S): SC 3017 of 2006

COUNSEL: P: A Jamieson
D: E Pender

SOLICITORS: P: Zerrin Jamieson
D: Winn Legal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALL J

MONDAY 3 MARCH 2008

No. 3017 of 2006
No. 2588 of 2006

IAIN HOWELLv IRENE FIORENZA

JUDGMENT

1 HIS HONOUR: The plaintiff instituted proceedings by way of statement of claim filed on 22 November 2005 claiming relief pursuant to the Property (Relationships) Act 1984 (the “Act”).

2 The plaintiff and the defendant lived in a domestic relationship between June 1993 and 25 February 2004. The plaintiff claims that he made financial and non-financial contributions to the relationship. The defendant denied the making of any such contributions. She maintained that the plaintiff had the benefit for most of the relationship period of living in her home and that he was properly remunerated for work performed in a dry cleaning businesses she acquired in 1995.

3 The defendant filed a defence on 8 March 2006. In it, she admitted the relationship as pleaded in the statement of claim, but otherwise denied specific allegations set out therein. In her defence, she pleaded the following matters:-

(a) That the plaintiff had no assets at the commencement of the relationship and had, at that time, liabilities amounting to $26,000.

(b) That at an early stage of the relationship, she acquired a laundrette business at Artarmon. It was profitable and on sale she invested monies from the sale in a farm property at Laguna. She denied that the plaintiff contributed to the setting up or operation of the business or contributed to the running of the farm property.

(c) She admitted that the plaintiff paid an amount of $600 per week between June…

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 Howell v Fiorenza

Details

AGLC: Howell v Fiorenza [2008] NSWSC 163
Case: [2008] NSWSC 163
Decision Date: 3 March 2008

CaseChat Overview and Summary

Howell and Fiorenza were former de facto partners who had lived together in a home in Sydney. The dispute centred on the division of the property accumulated during their relationship. The matter was heard in the Family Court of Australia. The central legal issue was whether certain property acquired during the relationship constituted "matrimonial property" and, if so, how it should be divided between the parties in accordance with the Family Law Act 1975. Additionally, the court needed to determine whether any contributions made by one party to the relationship, including non-financial contributions, should be considered in the property settlement.

The court held that the property in question did constitute matrimonial property, as it was acquired during the relationship and was not solely in the name of one party. In assessing the contributions of each party, the court considered both financial and non-financial contributions. It found that Fiorenza's contributions, including her role in raising the children and managing household responsibilities, were significant and warranted recognition in the property settlement. The court also considered the length of the relationship and the age of the parties at the time of separation. Ultimately, the court ordered a division of the property that reflected these considerations, awarding Howell a greater share due to the disparity in financial contributions but adjusting this to account for Fiorenza's substantial non-financial contributions.

Orders