Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Jensen v Ray [2011] NSWCA 247 Hearing dates: 17 March 2011 Decision date: 01 September 2011 Before: Campbell JA, Sackville AJA and Brereton J Decision: 1. Order that the appeal be allowed.
2. Order that the orders made by the District Court on 25 February 2010 be set aside, and in lieu thereof:
2.1 Order pursuant to (NSW) Property (Relationships) Act, s 20, by way of adjustment of property interests, that the property situate at and known as 21 St Elmo Street, Blackheath be sold in accordance with the provisions of the Schedule ("the Sale") and the proceeds applied as follows:
(1) First, in payment of all costs and expenses of the Sale, including legal costs and disbursements, agent's commission, and auction fees, including reimbursement to the defendant of any amount she may be required to advance for advertising;
(2) Secondly, in payment of any outstanding Council and Water Rates;
(3) Thirdly, to discharge of the mortgage to St George Bank Limited;
(4) Fourthly, in payment to the plaintiff of $22,000;
(5) Fifthly, in distribution of the residue, as to 91% thereof plus $3,590 to the defendant, and the balance to the plaintiff;
and that each of the parties otherwise be and remain entitled to the exclusion of the other to all personal property now in that respective party's possession or name.
2.2 Order that the defendant pay the plaintiff's costs, fixed in the sum of $15,000.
3. Order that the respondent pay the appellant's costs of the appeal, and that the respondent if otherwise qualified be granted an indemnity certificate under the Suitors Fund Act, s 6.
Catchwords: APPEAL - Appeal from judgment of District Court in Property (Relationships) Act 1984 (NSW) s 20 matter - appeal as of right restricted to matter at issue amounting to $100,000 or more, or claim demand or question amounting to $100,000 or more - value of matter at issue determined by whether realistic prospect of changing wealth of party by at least $100,000.
FAMILY LAW - de facto relationships - property - division of assets and adjustment of interests - contributions - failure to apply ratio of contribution of the parties to the net assets - whether open to allocate no property to partner found to have made 40% of contributions - balancing initial and ongoing contributions - treatment of tax debt in calculating liabilities incurred during relationship - both parties to relationship receive benefits of unpaid tax - tax debt treated as liability to be borne by divisible property - duty to finally determine financial relationships between the parties under Property (Relationships) Act 1984 (NSW), s 19 - judge at first instance left party with rights to recover contribution for mortgage debt against other - practicable to end parties' financial relationship - evaluation of contributions of parties fails to correctly assess initial contribution - ongoing contributions weighed with initial contribution result in just and equitable apportionment of totality of contributions…
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- AGLC
- Jensen v Ray [2011] NSWCA 247
- Case
- [2011] NSWCA 247
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the appeal was properly before it, given restrictions on appeals as of right where the value of the matter at issue did not amount to $100,000 or more. Further, the court had to consider whether the primary judge had erred in their assessment of the parties' contributions to their relationship and the net assets, particularly in failing to apply a ratio of contributions to the net assets and in allocating no property to a party found to have made 40% of the contributions. The court also considered the proper treatment of a tax debt incurred during the relationship and whether the primary judge had failed in their duty to finally determine the parties' financial relationship. Finally, the court addressed the appropriate orders for costs at first instance and on appeal.
The Court of Appeal found that the appeal was properly before it as the value of the matter at issue had a realistic prospect of exceeding $100,000. The court reasoned that the primary judge had erred in their assessment of contributions, failing to correctly weigh initial and ongoing contributions, which resulted in an unjust apportionment. The court also determined that the tax debt incurred during the relationship should be treated as a liability to be borne by the divisible property, as both parties had benefited from the unpaid tax. The court concluded that it was practicable to finally determine the parties' financial relationship.
Consequently, the Court of Appeal allowed the appeal, setting aside the District Court's orders. New orders were made for the sale of the property at 21 St Elmo Street, Blackheath, with the proceeds to be applied first to sale costs, then rates, then the mortgage, followed by a payment of $22,000 to the plaintiff. The residue was to be divided with 91% plus $3,590 going to the defendant, and the balance to the plaintiff. The court also ordered that the defendant pay the plaintiff's costs fixed at $15,000, and the respondent pay the appellant's costs of the appeal, with the respondent to be granted an indemnity certificate.
Orders
Orders of the court
1. Order that the appeal be allowed.
2. Order that the orders made by the District Court on 25 February 2010 be set aside, and in lieu thereof:
2.1 Order pursuant to (NSW) Property (Relationships) Act, s 20, by way of adjustment of property interests, that the property situate at and known as 21 St Elmo Street, Blackheath be sold in accordance with the provisions of the Schedule ("the Sale") and the proceeds applied as follows:
(1) First, in payment of all costs and expenses of the Sale, including legal costs and disbursements, agent's commission, and auction fees, including reimbursement to the defendant of any amount she may be required to advance for advertising;
(2) Secondly, in payment of any outstanding Council and Water Rates;
(3) Thirdly, to discharge of the mortgage to St George Bank Limited;
(4) Fourthly, in payment to the plaintiff of $22,000;
(5) Fifthly, in distribution of the residue, as to 91% thereof plus $3,590 to the defendant, and the balance to the plaintiff;
and that each of the parties otherwise be and remain entitled to the exclusion of the other to all personal property now in that respective party's possession or name.
2.2 Order that the defendant pay the plaintiff's costs, fixed in the sum of $15,000.
3. Order that the respondent pay the appellant's costs of the appeal, and that the respondent if otherwise qualified be granted an indemnity certificate under the Suitors Fund Act, s 6.
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
Established by: BRERETON J
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