Jensen v Ray

The appeal concerned a dispute between Jensen (the appellant) and Ray (the respondent) regarding the division of property following the breakdown of their de facto relationship. The matter came before the Court of Appeal of New South Wales after a judgment from the District Court concerning the adjustment of property interests under the *Property (Relationships) Act 1984* (NSW).

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.