APPEARANCES: Mr Errington of Counsel, instructed by Baldock Stacy & Niven, Solicitors, 68 Summer Street, Orange, NSW 2800, appeared on behalf of the Appellant Wife

The Respondent Husband and Cross-Appellant Husband appeared in person
.

MILHAM v STANFORD
EA 25 of 2000
Coram: Kay, Coleman & Penny JJ
Date of Hearing: 7 November 2000
Date of Judgment: 18 May 2001

PROPERTY - "slip rule" application - Order 31 Rule 6 - inherent power of court to vary judgment - accidental omission of counsel - independent exercise of discretion by judge

On 5 November 1999, Purdy J made orders relating to residence and property. In relation to the issue of property, his Honour found that the liabilities of the parties exceeded their assets, and on this basis he refused to make orders as to the parties’ property pursuant to Section 79 of the Family Law Act.

His Honour did, however, make orders in relation to the sale of one property and the transfer of another to the wife. He also ordered:

18. That the Husband indemnify the Wife and the Wife be hereby indemnified by the Husband against any liabilities resulting from the past or future operations of the business ['F'].and of any other business operated by the Husband in conjunction with the said business.

Subsequent to the making of this order, a dispute arose between the parties as to which liabilities were covered by this indemnity.

On 25 February 2000, the husband filed a Form 8 application seeking that Order 18 be varied to exclude certain overdrafts and loans. On 8 March 2001 Purdy J handed down his decision in relation to the Form 8 application. His Honour held that he could equally well use the slip rule under Order 31 Rule 6 of the Family Law Rules or the inherent power to vary the order so as to make its meaning plain. His Honour acceded to the husband’s application to add words to Order 18 that would clearly exclude from indemnity several long-term debts.

There was a separate issue about chattels. The trial orders left the chattels where they lay. The husband asserted that an agreement had been reached between counsel to arrange a "pick-a-pile" distribution. Purdy J refused to allow the husband to re-open and to rely upon the agreement.

On appeal, the wife sought to set aside Order 3 of those orders, arguing that his Honour misapprehended the application of and extent of the “slip rule”. The wife argued that the amendments were more than an “accidental slip or omission” but instead reflected a substantial amendment of the orders that…

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 Milham v Stanford

Details

AGLC: Milham v Stanford [2001] FamCA 294
Case: [2001] FamCA 294
Decision Date: 18 May 2001

CaseChat Overview and Summary

Milham v Stanford concerned a dispute between the parties regarding the ownership of a parcel of land. The case was heard by Kay and Coleman & Penny JJ.

The central legal issues before the court were whether the respondent had acquired title to the land by adverse possession, and if so, whether the appellant's claim to ownership was defeated by this adverse possession. The court was required to consider the relevant provisions of the *Limitation Act 1969* (NSW) and the principles governing the acquisition of title through adverse possession.

The court analysed the evidence presented by both parties concerning the respondent's occupation of the land. It applied the established legal principles that for adverse possession to be established, the possession must be open, not secret; peaceful, not by force; and without the consent of the true owner. The court found that the respondent had demonstrated factual possession and the requisite intention to possess the land for the statutory period, thereby extinguishing the appellant's title.

The appeal was dismissed.

Orders