Howlett v Neilson

Case [2005] NSWCA 149


Reported Decision:

(2005) DFC 95-321

Court of Appeal


CITATION:

Howlett v. Neilson [2005] NSWCA 149

HEARING DATE(S):

16 March 2005

 
JUDGMENT DATE: 


9 May 2005

JUDGMENT OF:

Hodgson JA at 1; Ipp JA at 49; McColl JA at 50

DECISION:

1. Appeal allowed. 2. Orders below set aside. 3. In lieu thereof, order that the appellant pay the respondent $97,000.00 with interest accruing from 11 April 2003, and appellant to pay the respondent's costs of the proceedings. 4. Respondent to pay the appellant's costs of the appeal, not extending to the costs of Senior Counsel, and to have a certificate under the Suitors' Fund Act if otherwise eligible.

CATCHWORDS:

FAMILY LAW - De facto relationships - Statutory power to make orders adjusting property interests of parties - Matters to be considered - Initial contributions of parties - Contributions during relationship - Relevance of both benefit and cost of contributions - Need for findings as to contributions - Sufficiency of reasons

CASES CITED:

Dwyer v. Kaljo (1992) 27 NSWLR 728
Evans v. Marmont (1997) 42 NSWLR 70
Jones v. Grech [2001] NSWCA 208, 27 FamLR 711
Lyman v. Lyman (1989) 13 FamLR 18
Mallett v. Mallett (1984) 156 CLR 605
Marriage of Clauson (1995) 18 FamLR 693
Marriage of Ferraro (1992) 16 FamLR 1
Pierce v. Pierce [1999] FLC 92-844
Powell v. Supresencia (2003) 30 FamLR 473
Wallace v. Stanford (1985) 37 NSWLR 1

PARTIES:

Gary William Howlett - appellant
Gail Maxine Neilson - respondent

FILE NUMBER(S):

CA 40942/03

COUNSEL:

Mr. P. Brereton SC with Mr. J.W. Hammond for appellant
Mr. R.E. Quickenden for respondent

SOLICITORS:

Stephen Marks, Gorokan for appellant
John Ryan, Toukley for respondent

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

DC 236/01 (Gosford)

LOWER COURT JUDICIAL OFFICER:

English DCJ




                          CA 40942/03
                          DC 236/01

                          HODGSON JA
                          IPP JA
                          McCOLL JA

                          Monday 9 May 2005
HOWLETT V. NEILSON
Headnote


      FACTS
      A de facto relationship between the appellant and the respondent, lasting seventeen years and resulting in one child, ended in January 2000.

      The initial contributions of the appellant and respondent were approximately $110,000 and $2,000, respectively. Included in the appellant’s assets was a house in Lake Munmorah where the parties resided. During the relationship the house was demolished and replaced by a newly constructed residence. The property was then sold in 2001 after the relationship ended, yielding a profit of $146,240.02.

      The appellant was employed until 1987, and from 1988 conducted his own business with the assistance of the respondent. The respondent ceased being employed after the birth of their child, instead taking responsibility for care of the child and the household. She later undertook casual employment.

      The primary judge found that the respondent brought minimal assets to the relationship, but that she had made significant contributions to the appellant’s business, to the building of the new house on the property and in the capacity of homemaker.

      The primary judge valued the assets at $312,516.00, and found it just and equitable under s.20 of the Property…

Continue reading Howlett v Neilson

Sign in free to access the full text

Details
AGLC
Howlett v Neilson [2005] NSWCA 149
Case
[2005] NSWCA 149
Decision Date

CaseChat Overview and Summary

The appeal concerned property adjustment orders made in the context of a de facto relationship. The parties to the dispute were the appellant and the respondent. The court was required to determine whether the initial property adjustment orders made by the court below were sufficient and appropriate.

The central legal issues before the court were whether the judge below had adequately considered all relevant matters under the relevant legislation, particularly the initial contributions of the parties and their contributions during the relationship, taking into account both the benefit and cost of those contributions. The court also considered the sufficiency of the reasons provided by the judge in reaching their decision.

The Full Court found that the judge below had failed to make sufficient findings of fact regarding the contributions of both parties, both initially and during the relationship. This failure meant that the judge had not properly considered all the matters required by the statute, leading to an erroneous decision. Consequently, the appeal was allowed, and the original orders were set aside. In their place, the court ordered that the appellant pay the respondent $97,000.00 with interest from 11 April 2003, and that the appellant pay the respondent's costs of the proceedings below. The respondent was ordered to pay the appellant's costs of the appeal, with certain exclusions.

Orders

Orders of the court

1. Appeal allowed. 2. Orders below set aside. 3. In lieu thereof, order that the appellant pay the respondent $97,000.00 with interest accruing from 11 April 2003, and appellant to pay the respondent's costs of the proceedings. 4. Respondent to pay the appellant's costs of the appeal, not extending to the costs of Senior Counsel, and to have a certificate under the Suitors' Fund Act if otherwise eligible.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.