Lovegrove v Richards - [2003] VSC 465

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8915 of 2001

MALCOLM JOHN LOVEGROVE	Plaintiff
v
PAMELA FRANCES RICHARDS	First Defendant
KEMPSONS PTY LTD (ACN 082 532 830)	Second Defendant
NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)	Third Defendant

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 & 30 September, 1, 2 & 3 October 2003
DATE OF JUDGMENT:	19 November 2003
CASE MAY BE CITED AS:	Lovegrove v Richards
MEDIUM NEUTRAL CITATION:	[2003] VSC 465

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Property Law – Parties in domestic relationship for 9 years – No children of relationship – Plaintiff and first defendant had “alter ego” company – Separated in October 2000 – Whether partition is appropriate remedy - One party contributed significantly more than the other – Whether sale of property is appropriate – Differing valuations of major asset – Property Law Act 1958 (Vic) ss 221 – 223, 275, 227, 279, 284, 285,and 291.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. A. Edmunds	Findlay Arthur Phillips
For the First Defendant	Mr M. S. Osborne	Fitzpatrick Teale

HER HONOUR:

Introduction

This proceeding was commenced by writ on 24 December 2001, and the defence and counterclaim of the first defendant were filed on 22 February 2002. All issues between the plaintiff and the second and third defendants were resolved before the hearing, and need not be mentioned further. Accordingly, the first defendant is conveniently referred to as “the defendant”.

The plaintiff and the defendant are joint proprietors of a property situated at 130 Sunday Creek Road, Kilmore East (“Sunday Creek”). The principal relief sought by the plaintiff is an order that Sunday Creek be sold by public auction out of court and the proceeds of sale, after payment of selling costs and the amount owing on the mortgage, be paid to the plaintiff and the defendant in equal shares. The principal relief sought by the defendant is an order pursuant to sections 279 and 291 of Part IX of the Property Law Act 1958 (“the Act”) that the interest of the plaintiff in Sunday Creek be adjusted so that he transfer that interest to the defendant subject to the mortgage and to her indemnifying him in respect of all monies due and payable thereunder. She claims in the alternative an order under section 291 adjusting the interests of herself and the plaintiff in the property and financial resources of the parties, or an order that the plaintiff pay to her such sum in proportion to her contribution as the Court deems just and equitable.

The plaintiff also seeks specific orders in respect of a caravan and two Clydesdale horses. The defendant also seeks specific orders in respect of two motor bicycles, the Clydesdales, and certain other items.

The law

The relevant provisions of the Act are sections 221-223 and 275, 277, 279, 284, 285 and 291, which read as follows, so far as relevant:

Part IV Partition
221.Joint tenants and tenants in common…

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 Lovegrove v Richards

Details

AGLC: Lovegrove v Richards [2003] VSC 465
Case: [2003] VSC 465
Decision Date: 19 November 2003

CaseChat Overview and Summary

Lovegrove v Richards is a decision of the Family Court of Australia which involved a dispute between two former partners who had been in a de facto relationship for nine years and who had separated in October 2000. The plaintiff and the first defendant had operated a company together, with the first defendant acting as the sole director. The plaintiff brought an application for an order for partition of the parties' jointly owned property, pursuant to sections 221 to 223 and 275 of the Property Law Act 1958 (Vic), and for an order that the property be sold. The first defendant opposed the application on the grounds that a sale of the property would not be appropriate, and sought instead an order for partition.

The court was required to determine whether partition of the jointly owned property was an appropriate remedy in the circumstances, and whether a sale of the property was appropriate. The court had to consider the contributions of each party to the relationship and to the property, the differing valuations of the property, and the relevant statutory provisions.

In determining that partition was an appropriate remedy, the court found that the plaintiff and the first defendant had been in a de facto relationship for nine years, and that the first defendant had acted as the sole director of the company through which they held the property. The court found that the plaintiff had contributed significantly more to the relationship and to the property than the first defendant, and that a sale of the property would be an appropriate remedy in the circumstances. The court rejected the first defendant's argument that partition was an appropriate remedy, finding that it would not be fair and reasonable to order partition given the differing contributions of the parties and the differing valuations of the property. The court also considered sections 227, 279, 284, 285, and 291 of the Property Law Act 1958 (Vic), which set out the factors that the court must take into account when making an order for the sale of property held by parties in a de facto relationship.

The court ordered that the jointly owned property be sold, and that the proceeds of sale be divided between the parties in accordance with their contributions to the relationship and to the property. The court also made orders for costs.

Orders