[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
PROPERTY ― orders adjusting property interests of de facto partners under s 20 of the Property (Relationships) Act 1984 ― just and equitable adjustment ― whether primary judge erred in not treating amounts spent by respondent on legal costs as funds received from joint property ― where costs followed event and appellant ordered to pay respondent's costs ― where appellant adduced no evidence as to amount paid and liability incurred in relation to legal costs ― where appellant did not ask primary judge to take appellant's legal fees into account prior to argument about costs
MEAGHER JA: This appeal should be dismissed with costs and the application for leave to amend the notice of appeal dismissed, in each case for the reasons given by Emmett JA.
WARD JA: I agree with Emmett JA.
EMMETT JA: This Appeal is concerned with orders for the adjustment of property under s 20 of the Property (Relationships) Act 1984 (the Act). In June 2010, the respondent, Mr William Lane, applied for orders under the Act against the appellant, Ms Maxine Manuel. In August 2010, Ms Manuel filed a cross-claim that sought different orders under the Act. On 1 February 2012, a Judge of the Equity Division of the Court made orders under the Act. Ms Manuel now appeals from those orders.
Before dealing with the issues in the appeal, it is desirable to say something about the relevant provisions of the Act, as well as the relevant principles applicable to a proceeding under the Act. It will then be convenient to summarise briefly the circumstances of the parties.
The relevant provisions of the Act
Section 14 of the Act provides that a party to a domestic relationship may…
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.
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Details
AGLC
Manuel v Lane [2013] NSWCA 61
Case
[2013] NSWCA 61
Decision Date
CaseChat Overview and Summary
The appeal concerned an application for orders adjusting property interests of de facto partners under section 20 of the *Property (Relationships) Act 1984* (NSW). The primary judge had made orders adjusting the property interests of the parties, and the appellant sought to challenge those orders.
The central legal issue before the Court of Appeal was whether the primary judge erred in failing to treat amounts spent by the respondent on legal costs as funds received from joint property. This question arose in the context of an order that the appellant pay the respondent's costs, following the event.
The Court of Appeal reasoned that the appellant had adduced no evidence as to the amount paid or liability incurred in relation to legal costs. Furthermore, the appellant had not sought to have their own legal fees taken into account by the primary judge prior to the argument about costs. Consequently, the Court found no error in the primary judge's approach.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]