Kardos v Sarbutt [2006] NSWCA 11 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
23 September 2005
JUDGMENT DATE:
14 February 2006
JUDGMENT OF:
Basten JA at 1; Hunt AJA at 2; Brereton J at 3
DECISION:
1. That the appeal be allowed. 2. That the orders of the District Court made on 7 February and 21 February 2005 be set aside and in lieu thereof there be substituted with effect from 21 February 2005:- 2.1 Order that by way of adjustment and settlement of property interests pursuant to the Property (Relationships) Act 1984, s 20 the defendant Tristan Jane Kardos pay the plaintiff Paul Ventris Sarbutt the sum of $36,075. 2.2 Order that the defendant pay the plaintiff’s costs of the proceedings. 3. That the respondent Paul Ventris Sarbutt pay the costs of the appellant Tristan Jane Kardos of the appeal. 4. That the respondent Paul Ventris Sarbutt be granted an indemnity certificate under the Suitors’ Fund Act 1951 (NSW), s 6. 5. That the parties have liberty to apply to set aside orders 2.2 and 3 and for different costs orders, any such application to be made by written submission to be lodged with the Associate to the Presiding Judge within seven days, any response by the opposing party to be so lodged within a further seven days and any reply by the moving party within a further seven days thereafter.
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS –adjustment of property interests – appeal – approach to property adjustment – evaluation of contributions – whether trial judge erred in failing to adopt “asset-by-asset” approach – whether trial judge erred in treatment of initial contributions of parties – whether trial judged erred in assessment of ongoing contributions of parties during relationship – whether trial judged erred in allowing for “notional rent” of premises in which parties cohabited – whether trial judge erred in failing to allow interest when award was based on valuations struck at date of separation rather than hearing.
[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.
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AGLC
Kardos v Sarbutt [2006] NSWCA 11
Case
[2006] NSWCA 11
Decision Date
CaseChat Overview and Summary
The appeal concerned the adjustment of property interests between the parties, Tristan Jane Kardos and Paul Ventris Sarbutt, following the breakdown of their de facto relationship. The matter came before the Court of Appeal of New South Wales.
The primary legal issues before the court were whether the trial judge had erred in their approach to the property adjustment. Specifically, the court was asked to consider whether the trial judge had failed to adopt an "asset-by-asset" approach, whether the initial contributions of the parties were inadequately treated, whether the ongoing contributions during the relationship were assessed incorrectly, whether the allowance for "notional rent" was erroneous, and whether the trial judge erred in failing to allow interest on the award when it was based on valuations struck at the date of separation rather than the hearing.
The Court of Appeal allowed the appeal, finding that the trial judge had erred in their assessment. The court set aside the previous orders and substituted new orders. The defendant, Tristan Jane Kardos, was ordered to pay the plaintiff, Paul Ventris Sarbutt, the sum of $36,075 by way of adjustment and settlement of property interests. The defendant was also ordered to pay the plaintiff's costs of the proceedings. The respondent, Paul Ventris Sarbutt, was ordered to pay the costs of the appellant, Tristan Jane Kardos, of the appeal. The respondent was granted an indemnity certificate under the Suitors’ Fund Act 1951 (NSW). The parties were granted liberty to apply to set aside the costs orders and seek different costs orders within a specified timeframe.
Orders
Orders of the court
1. That the appeal be allowed. 2. That the orders of the District Court made on 7 February and 21 February 2005 be set aside and in lieu thereof there be substituted with effect from 21 February 2005:- 2.1 Order that by way of adjustment and settlement of property interests pursuant to the Property (Relationships) Act 1984, s 20 the defendant Tristan Jane Kardos pay the plaintiff Paul Ventris Sarbutt the sum of $36,075. 2.2 Order that the defendant pay the plaintiff’s costs of the proceedings. 3. That the respondent Paul Ventris Sarbutt pay the costs of the appellant Tristan Jane Kardos of the appeal. 4. That the respondent Paul Ventris Sarbutt be granted an indemnity certificate under the Suitors’ Fund Act 1951 (NSW), s 6. 5. That the parties have liberty to apply to set aside orders 2.2 and 3 and for different costs orders, any such application to be made by written submission to be lodged with the Associate to the Presiding Judge within seven days, any response by the opposing party to be so lodged within a further seven days and any reply by the moving party within a further seven days thereafter.