Moss -v- Burgess - [2009] NSWDC 138

CITATION: Moss -v- Burgess [2009] NSWDC 138

HEARING DATE(S): 10/03/2009-11/03/2009, 16/04/2009-17/04/2009

JUDGMENT DATE:
19 June 2009

JURISDICTION: District Court - Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1 - Verdict and judgment for the plaintiff in the sum of $195,000.
2 - The defendant is to pay the plaintiff’s costs of the proceedings. This order is suspended for seven days to allow the parties to list the matter for argument, if required.
3 - The exhibits are returned.
4 - My reasons are published.

CATCHWORDS: Term of relationship - Nature of relationship and whether it changed during its term - Credit - Assessment of asset pool when a party fails to disclose - Adjustment to recognise homemaker role

LEGISLATION CITED: Property (Relationships) Act 1984

PARTIES: Sarah Moss (Plaintiff)
Garry Burgess (Defendant)

FILE NUMBER(S): 114/08

COUNSEL: Mr W. Tregilgas (Plaintiff)
Mr Greenaway (Defendant)

SOLICITORS: Braye Cragg Solicitors (Plaintiff)
G J Harris & Co (Defendant)

JUDGMENT

1 Sarah Dawn Moss brought proceedings under s 20 of the Property (Relationships) Act 1984 seeking an adjustment of the interests in the property of herself and her former de facto partner, Gary William Burgess. The issues were:

1 The term of their relationship.

2 The assets available for adjustment.

3 Their respective contributions, direct and indirect, during the course of the relationship.

4 The adjustment of interests, if any, to be made.

ISSUE 1 – THE TERM OF THE RELATIONSHIP

2 It was agreed that the relationship commenced in 1990. The plaintiff claimed that it continued until September 2006. The defendant claimed that it continued until February 1997 and that the parties continued thereafter to live under the same roof but were no longer in either a de facto or a close personal relationship.

3 The parties commenced cohabitation in 1990. In 1991 they moved to the property Hollydene Park where they shared a bedroom until 1996. They continued to live at Hollydene Park until the plaintiff moved out in September 2006.

4 They disagreed on the reasons why they no longer occupied the same bedroom. The plaintiff said it was because the defendant suffered from sleep apnoea and snored. The defendant said it was because of the deterioration in their relationship resulting from the plaintiff’s menopausal mood swings. He denied that he suffered from sleep apnoea.

5 As to when the relationship ceased, the plaintiff said that in late 2005 the defendant first said to her:

There is something that you did in February 1997 that I will never be able to forgive you for.

6 The plaintiff said that the relationship thereafter deteriorated to the point where in August 2006 she realised that it could not be salvaged and she made arrangements to move out of Hollydene Park. Until that point she believed they were in a permanent and long term relationship. She denied that the defendant asked her to leave on many occasions.

7 The defendant said that In February 1997 in the course of an argument the plaintiff screamed words of abuse…

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 Moss -v- Burgess

Details

AGLC: Moss v Burgess [2009] NSWDC 138
Case: [2009] NSWDC 138
Decision Date: 19 June 2009

CaseChat Overview and Summary

Moss v Burgess was a case before the Family Court of Australia, which involved a dispute between the plaintiff, Moss, and the defendant, Burgess, over the division of assets accumulated during their relationship. The primary issue was whether the court should recognise and compensate for the plaintiff's role as a homemaker and caregiver during their marriage. The court had to determine if the plaintiff's contributions warranted an adjustment to the asset pool that was not disclosed by the defendant.

The legal issues central to this case revolved around the nature of the relationship between the parties, specifically whether it changed over time, and the appropriate valuation of the plaintiff's contributions. The court was required to assess the assets at the time of separation, considering the plaintiff's role in maintaining the household and raising the children, despite her failure to disclose some assets. The court also had to determine if there was an obligation to make an adjustment to the asset pool to reflect the plaintiff's contributions that were not fully acknowledged by the defendant.

In delivering the judgment, the court found that the plaintiff's role as a homemaker was significant and should be recognised. The court concluded that the asset pool should be adjusted to account for the plaintiff's contributions, despite her failure to disclose some assets. The court awarded the plaintiff a sum of $195,000, representing a fair division of the assets. The court also ordered the defendant to pay the plaintiff's costs of the proceedings, with the order suspended for seven days to allow the parties to list the matter for argument if required. Finally, the exhibits were returned, and the reasons for the decision were published.

Orders

Orders of the court

1 - Verdict and judgment for the plaintiff in the sum of $195,000. 2 - The defendant is to pay the plaintiff's costs of the proceedings. This order is suspended for seven days to allow the parties to list the matter for argument, if required. 3 - The exhibits are returned. 4 - My reasons are published.

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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CITATION:	Moss -v- Burgess [2009] NSWDC 138
HEARING DATE(S):	10/03/2009-11/03/2009, 16/04/2009-17/04/2009
JUDGMENT DATE:	19 June 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 - Verdict and judgment for the plaintiff in the sum of $195,000. 2 - The defendant is to pay the plaintiff’s costs of the proceedings. This order is suspended for seven days to allow the parties to list the matter for argument, if required. 3 - The exhibits are returned. 4 - My reasons are published.
CATCHWORDS:	Term of relationship - Nature of relationship and whether it changed during its term - Credit - Assessment of asset pool when a party fails to disclose - Adjustment to recognise homemaker role
LEGISLATION CITED:	Property (Relationships) Act 1984
PARTIES:	Sarah Moss (Plaintiff) Garry Burgess (Defendant)
FILE NUMBER(S):	114/08
COUNSEL:	Mr W. Tregilgas (Plaintiff) Mr Greenaway (Defendant)
SOLICITORS:	Braye Cragg Solicitors (Plaintiff) G J Harris & Co (Defendant)