Reported Decision: (2007) DFC 95-406
New South Wales
Court of Appeal
CITATION: Manns v Kennedy [2007] NSWCA 217 HEARING DATE(S): 25 June 2007
JUDGMENT DATE:
21 August 2007JUDGMENT OF: Santow JA at 1; Campbell JA at 2; Bryson AJA at 154 DECISION: (1) Set aside the orders made in this matter on 11 October 2006.; (2) The Appellant do all such acts and things and sign all such documents as may be required to transfer to the Respondent all of his right, title and interest in the real property situate at and known as Lot 130, Burra Road, Gundagai being the whole of the land more particularly described in certificate of title folio identifier 130/751421.; (3) The Respondent refinance the mortgage registered number 2074086 to the State Bank of New South Wales into her sole name within 28 days from the date of these orders.; (4) The Appellant pay to the Respondent the sum of $250,734 within 28 days from the date of these orders.; (5) The payment by the Appellant to the Respondent pursuant to Order 4 shall include the amount payable by the company, Gundagai Bee Farms Pty Limited, to the Respondent and the payment of monies pursuant to Order 4 shall operate in discharge of all monies owing by the said company to the Respondent.; (6) The Respondent is declared the sole and beneficial owner of the contents and furniture of Lot 130, Burra Road, Gundagai.; (7) The Appellant procure that any mortgage over the said Lot 130, Burra Road Gundagai that secures borrowings made for the purpose of erecting improvements on Lot 472 Burra Road Gundagai or for the business of Gundagai Bee Farms Pty Ltd be discharged within 60 days from the date of these orders.; (8) Otherwise each party is to retain any property in their own name and their present existing superannuation entitlements.; (9) Exhibits to be returned.; 10. Liberty to apply. CATCHWORDS: FAMILY LAW – de facto relationships – property – adjustment of parties’ interests in property – application under section 20 of the Property (Relationships) Act 1984 – contributions – evaluation of contributions – gift by parents of a party – interest-free credit – contributions to appellant’s beekeeping business by respondent – parenting contributions – homemaking contributions – land improvements - FAMILY LAW – de facto relationships – property – adjustment of parties’ interests in property – application under section 20 of the Property (Relationships) Act 1984 – valuation of property – date as at which property to be valued for purposes of formulating order under section 20 – whether correct date as at which to value property date of separation or date of hearing – where no current valuation as at date of hearing – whether latest available value should be used for purposes of formulating order under section 20 – whether assets and liabilities of business should be valued as at the same date - FAMILY LAW – de facto relationships – property – adjustment of parties’ interests…
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- AGLC
- Manns v Kennedy [2007] NSWCA 217
- Case
- [2007] NSWCA 217
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the trial judge had erred in the valuation of the parties' property, specifically the date as at which property should be valued for the purpose of formulating orders, and whether the trial judge had adequately considered all relevant factors in determining the adjustment of property interests. The court also considered whether the trial judge's reasons for the orders made were sufficient and whether the appellant had been denied procedural fairness. Furthermore, the court examined whether interest should be awarded on a monetary sum payable to the respondent.
The appellate court, sitting as a court of rehearing, reviewed the trial judge's discretionary decisions, applying the principles established in *House v The King*. The court found that the trial judge had not erred in the valuation of the beekeeping business, accepting the latest available valuation as appropriate given the absence of a current valuation at the date of hearing. However, the court determined that the trial judge had erred in the formulation of the orders by adopting a global approach based solely on contributions, without adequately considering other relevant factors, such as the care and custody of a child, when determining orders concerning specific individual assets. The court also found that the trial judge's reasons were insufficient and that the appellant had been denied procedural fairness by the judge adopting a particular course without notice. The court concluded that an award of interest was necessary to make the order just and equitable under section 100 of the *Civil Procedure Act 2005* (NSW).
The court set aside the orders made by the trial judge and made new orders. These included the transfer of the appellant's interest in a property to the respondent, the respondent refinancing a mortgage, and the appellant paying a significant sum to the respondent, which was to include monies owed by a company to the respondent. The respondent was declared the sole beneficial owner of the contents and furniture of a property, and the appellant was ordered to discharge certain mortgages. Otherwise, each party was to retain their existing property and superannuation entitlements.
Orders
Orders of the court
(1) Set aside the orders made in this matter on 11 October 2006.;
(2) The Appellant do all such acts and things and sign all such documents as may be required to transfer to the Respondent all of his right, title and interest in the real property situate at and known as Lot 130, Burra Road, Gundagai being the whole of the land more particularly described in certificate of title folio identifier 130/751421.;
(3) The Respondent refinance the mortgage registered number 2074086 to the State Bank of New South Wales into her sole name within 28 days from the date of these orders.;
(4) The Appellant pay to the Respondent the sum of $250,734 within 28 days from the date of these orders.;
(5) The payment by the Appellant to the Respondent pursuant to Order 4 shall include the amount payable by the company, Gundagai Bee Farms Pty Limited, to the Respondent and the payment of monies pursuant to Order 4 shall operate in discharge of all monies owing by the said company to the Respondent.;
(6) The Respondent is declared the sole and beneficial owner of the contents and furniture of Lot 130, Burra Road, Gundagai.;
(7) The Appellant procure that any mortgage over the said Lot 130, Burra Road Gundagai that secures borrowings made for the purpose of erecting improvements on Lot 472 Burra Road Gundagai or for the business of Gundagai Bee Farms Pty Ltd be discharged within 60 days from the date of these orders.;
(8) Otherwise each party is to retain any property in their own name and their present existing superannuation entitlements.;
(9) Exhibits to be returned.;
(10) Liberty to apply.
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
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