Jensen v Pearce - [2013] NSWCA 247

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jensen v Pearce [2013] NSWCA 247
Hearing dates: 22 July 2013
Decision date: 05 August 2013
Before: Basten JA at [1];
Barrett JA at [65];
Emmett JA at [66]
Decision:
(1) Deem the notice of appeal to have been properly served on 6 June 2012 and, to the extent necessary, extend time for the commencement of the appeal to that date.
(2) Allow the appeal and set aside the orders made in the District Court at Coffs Harbour on 28 March 2012.
(3) Declare that the parties were in a domestic relationship for the purposes of the Property (Relationships) Act 1984 from February 2002 until August 2006.
(4) In place of the orders made in the District Court, make the following orders to take effect from the date of this judgment:
(a) judgment for the appellant against the respondent in the sum of $13,000;
(b) order that the respondent take all steps and sign all necessary documents to transfer to the appellant all her right, title and interest in the property known as 43 Pullen Street, Woolgoolga, New South Wales, being the land comprised in folio identifier 91/1100962;
(c) the plaintiff give vacant possession to the appellant of the property at 43 Pullen Street, Woolgoolga within two months of the date of this judgment;
(d) in the event that the respondent fails to comply with the terms of order (2)(b), appoint the officer in charge of the registry of the District Court at Coffs Harbour to execute any deed or instrument in the name of the respondent and do all acts and things necessary to effect the transfer of the respondent's interest in the property at 43 Pullen Street, Woolgoolga, pursuant to s 39 of the Property (Relationships) Act 1984;
(e) in the event that the respondent fails to provide vacant possession within two months of the date of this judgment, give leave to the appellant to seek the issue of a writ of possession with respect to the property.
(5) Direct that the respondent file written submissions, if she so wishes, with respect to the costs of the trial, within 14 days, absent which, order that the plaintiff pay the defendant's costs of the trial.
(6) Each party to bear its own costs of the appeal.
(7) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to her costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
FAMILY LAW - de facto relationships - adjustment of property interests - whether adjustment with respect to the property of 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.

Continue reading Jensen v Pearce

Details

AGLC: Jensen v Pearce [2013] NSWCA 247
Case: [2013] NSWCA 247
Decision Date: 05 August 2013

CaseChat Overview and Summary

This case concerned an appeal to the Court of Appeal of New South Wales concerning the adjustment of property interests arising from a de facto relationship. The appellant, Jensen, and the respondent, Pearce, had been in a de facto relationship from February 2002 until August 2006. The dispute involved the division of property, including property owned by the appellant in Sweden and jointly owned property in New South Wales. The primary question was whether the adjustment of property interests made by the District Court was just and equitable.

The legal issues before the Court of Appeal included determining the appropriate approach to assessing claims for adjustment of property interests in de facto relationships, particularly when the parties relied exclusively on affidavit evidence without oral testimony or cross-examination. The court also had to consider whether the respondent should receive credit for a first home owner's grant and stamp duty exemption, and the appropriate credit for contributions to the increase in value of the properties, including indirect contributions to properties in both Sweden and New South Wales. The court also considered whether an adjustment for an occupation fee was warranted.

The Court of Appeal found that the trial judge had difficulty resolving conflicts in the evidence due to the reliance on affidavit evidence alone and that the appellant's appearance in court may have inappropriately influenced the judge's assessment of his evidence. The appellate court determined that it was in a similar position to assess the factual basis of the claims and to determine a just and equitable outcome. The court allowed the appeal, set aside the District Court orders, and declared the parties were in a domestic relationship for the purposes of the relevant Act. The court then made new orders, including a judgment for the appellant against the respondent for $13,000, the transfer of the respondent's interest in the Woolgoolga property to the appellant, and provisions for vacant possession of that property. The court also made orders regarding the costs of the trial and the appeal.

Orders

Orders of the court

(1) Deem the notice of appeal to have been properly served on 6 June 2012 and, to the extent necessary, extend time for the commencement of the appeal to that date.

(2) Allow the appeal and set aside the orders made in the District Court at Coffs Harbour on 28 March 2012.

(3) Declare that the parties were in a domestic relationship for the purposes of the Property (Relationships) Act 1984 from February 2002 until August 2006.

(4) In place of the orders made in the District Court, make the following orders to take effect from the date of this judgment:

(a) judgment for the appellant against the respondent in the sum of $13,000;

(b) order that the respondent take all steps and sign all necessary documents to transfer to the appellant all her right, title and interest in the property known as 43 Pullen Street, Woolgoolga, New South Wales, being the land comprised in folio identifier 91/1100962;

(c) the plaintiff give vacant possession to the appellant of the property at 43 Pullen Street, Woolgoolga within two months of the date of this judgment;

(d) in the event that the respondent fails to comply with the terms of order (2)(b), appoint the officer in charge of the registry of the District Court at Coffs Harbour to execute any deed or instrument in the name of the respondent and do all acts and things necessary to effect the transfer of the respondent's interest in the property at 43 Pullen Street, Woolgoolga, pursuant to s 39 of the Property (Relationships) Act 1984;

(e) in the event that the respondent fails to provide vacant possession within two months of the date of this judgment, give leave to the appellant to seek the issue of a writ of possession with respect to the property.

(5) Direct that the respondent file written submissions, if she so wishes, with respect to the costs of the trial, within 14 days, absent which, order that the plaintiff pay the defendant's costs of the trial.

(6) Each party to bear its own costs of the appeal.

(7) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to her costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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Medium Neutral Citation:	Jensen v Pearce [2013] NSWCA 247
Hearing dates:	22 July 2013
Decision date:	05 August 2013
Before:	Basten JA at [1]; Barrett JA at [65]; Emmett JA at [66]
Decision:	(1) Deem the notice of appeal to have been properly served on 6 June 2012 and, to the extent necessary, extend time for the commencement of the appeal to that date. (2) Allow the appeal and set aside the orders made in the District Court at Coffs Harbour on 28 March 2012. (3) Declare that the parties were in a domestic relationship for the purposes of the Property (Relationships) Act 1984 from February 2002 until August 2006. (4) In place of the orders made in the District Court, make the following orders to take effect from the date of this judgment: (a) judgment for the appellant against the respondent in the sum of $13,000; (b) order that the respondent take all steps and sign all necessary documents to transfer to the appellant all her right, title and interest in the property known as 43 Pullen Street, Woolgoolga, New South Wales, being the land comprised in folio identifier 91/1100962; (c) the plaintiff give vacant possession to the appellant of the property at 43 Pullen Street, Woolgoolga within two months of the date of this judgment; (d) in the event that the respondent fails to comply with the terms of order (2)(b), appoint the officer in charge of the registry of the District Court at Coffs Harbour to execute any deed or instrument in the name of the respondent and do all acts and things necessary to effect the transfer of the respondent's interest in the property at 43 Pullen Street, Woolgoolga, pursuant to s 39 of the Property (Relationships) Act 1984; (e) in the event that the respondent fails to provide vacant possession within two months of the date of this judgment, give leave to the appellant to seek the issue of a writ of possession with respect to the property. (5) Direct that the respondent file written submissions, if she so wishes, with respect to the costs of the trial, within 14 days, absent which, order that the plaintiff pay the defendant's costs of the trial. (6) Each party to bear its own costs of the appeal. (7) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to her costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	FAMILY LAW - de facto relationships - adjustment of property interests - whether adjustment with respect to the property of the…