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Kenyon v Akeroyd

Kenyon v Akeroyd

Case [2008] VSCA 277 19 December 2008

De facto Relationship

Adjustment of Property Interests

Global Approach

Shared Undertaking

Property Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3798 of 2006

ELIZABETH MARY PANDELLA KENYON
ELIZABETH MARY PANDELLA KENYON	Appellant
v
JASON ROBERT AKEROYD	Respondent

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JUDGES:	MAXWELL P, REDLICH JA and FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2008
DATE OF JUDGMENT:	19 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 277

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PROPERTY – De facto relationship – Adjustment of property interests under Part IX of the Property Law Act 1958 (Vic) – How differing contributions to be valued – Global approach – Shared undertaking – Error to value homemaker and present contribution on basis of commercial cleaning rates – Error conceded – Adjustment altered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K McMillan SC and Ms B A Tulloch	Jane M Curtis & Associates
For the Respondent	Mr R J Spicer	Wards

MAXWELL P
REDLICH JA
FORREST AJA:

The appellant, Elizabeth Kenyon, and the respondent, Jason Akeroyd, were in a domestic relationship from 1998 until February 2003. They were ‘domestic partners’ within the meaning of Part IX of the Property Law Act1958 (Vic). The appeal is primarily concerned with the manner which the trial judge assessed the non-financial contributions of Ms Kenyon.

Mr Akeroyd brought proceedings in the County Court pursuant to s 279(1) of the Act, seeking orders for the adjustment of their property interests. In particular, he sought an order that Ms Kenyon vacate the Bruthen property in which they had lived together, and an order that he retain his interest in the two titles comprising the property at 170 Chambers Road, Bruthen.

By her defence and counterclaim, Ms Kenyon denied that Mr Akeroyd was entitled to any such adjustment. She sought, instead, an order that Mr Akeroyd transfer his interest in the property to her, subject to the existing loan. She also sought an order that he pay her ‘such sum as is deemed just and equitable’ pursuant to s 285 of the Act.

After a trial lasting several days, in the course of which both parties gave evidence, the judge essentially upheld Mr Akeroyd’s claims. She declared that he was sole owner of the Bruthen property, the title to which was in his name, and ordered Ms Kenyon to vacate the property within 30 days of the order. Mr Akeroyd was ordered to pay her the sum of $8 386.

Ms Kenyon has appealed against those orders. The submissions filed on her behalf accept that the division of assets between parties involves the exercise of a judicial discretion.[1] It follows that an appeal will only succeed if the appellant can

identify an error of the kind referred to in House v The King.[2] As will appear, however, counsel for Mr Akeroyd conceded in the course of the appeal hearing that the judge had committed an error of that kind,[3] such that the orders must be set aside and the discretion exercised afresh. Importantly, it was common ground that this should be done on the basis of the facts and circumstances as at…

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 Kenyon v Akeroyd

Details

AGLC: Kenyon v Akeroyd [2008] VSCA 277
Case: [2008] VSCA 277
Decision Date: 19 December 2008

CaseChat Overview and Summary

In the matter of Kenyon v Akeroyd, the Supreme Court of Victoria was tasked with determining the adjustment of property interests between the parties, who were in a de facto relationship. The central issue was the valuation of differing contributions made by each party to the relationship and the property. The court had to assess the contributions of the parties, particularly the homemaker and carer role of one party, and how these contributions should be valued under Part IX of the Property Law Act 1958 (Vic).

The legal issues before the court included the appropriate method for valuing the homemaker and carer contributions and the court's role in adjusting the property interests of the parties. The court considered whether a global approach to the valuation of contributions was appropriate and whether the contributions should be valued based on commercial rates for services such as cleaning. The court found that it was an error to value the homemaker and carer contributions based on commercial cleaning rates. This error was acknowledged by the party who initially made the valuation error.

The court's reasoning was based on the need for a fair and equitable adjustment of property interests that took into account the shared undertaking of the de facto relationship. The court concluded that a global approach was appropriate and that the contributions of the homemaker and carer should not be valued based on commercial rates. The court also found that the initial adjustment of property interests was flawed due to the valuation error and ordered a new adjustment to be made. This decision ensures that the court's adjustment of property interests is based on a fair and accurate assessment of the contributions made by each party.

Orders