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Nguyen v Scheiff

Nguyen v Scheiff

Case [2002] NSWSC 151 27 February 2002

De Facto Relationships

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Reported Decision:
(2002) DFC 95-246

New South Wales

Supreme Court

CITATION: Nguyen v Scheiff [2002] NSWSC 151 revised - 5/09/2002

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 1296/02

HEARING DATE(S): 27 February 2002

JUDGMENT DATE: 27 February 2002

PARTIES :

Philip Kim Nguyen (plaintiff)
Jitka Marie Schieff (defendant)

JUDGMENT OF: Campbell J

COUNSEL : B Richards (plaintiff)
T Hodgson (defendant)

SOLICITORS: Keddies (plaintiff)
Neil Lawson & Co (defendant)

CATCHWORDS: FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - interlocutory order for exclusive occupation of home - power of Supreme Court to grant - section 53 Property (Relationships) Act 1984 - applicability of principles used in similar cases under section 114 Family Law Act 1975 (Cth) - FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - application for adjustment of property interest under section 20 Property (Relationships) Act 1984 - ability of court to take into account contributions made after conclusion of relationship - REAL PROPERTY - co-ownership - whether interlocutory order under section 53 Property (Relationships) Act 1984 that one of the joint owners of property have exclusive occupancy requires person granted that order to pay an occupation fee

LEGISLATION CITED: Property (Relationships) Act 1984
Conveyancing Act 1919
De Facto Relationships Act 1984
Interpretation Act 1987
Family Law Act 1975 (Cth)
Supreme Court Act 1970
Crimes Act 1900

CASES CITED: O'Kane v Fogarty (1985) 2 NSWLR 649
Leis v Dagwell (9 December 1993, unreported)
Evans v Marmont (1997) 42 NSWLR 70
Davis v Davis [1976] FLC 90-062
Davis v Davis (1983) FLC 91-319
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545
Biviano v Natoli (1998) 43 NSWLR 695
Beresford v Booth [1999] SASC 166
Roy v Sturgeon (1986) 11 NSWLR 454
Foster v Evans (1997) DFC 95-193
Jones v Grech [2001] NSWCA 208
Green v Robinson (1995) 36 NSWLR 96

DECISION: Order made, on receipt of five undertakings.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

WEDNESDAY 27 FEBRUARY 2002

1296/02 PHILIP NGUYEN v JITKA MARIE SCHEIFF

JUDGMENT- (ex tempore)

1 HIS HONOUR: This is an application under s 53 of the Property (Relationships) Act 1984. It seeks an order that:

1. Until further order, the plaintiff, his servants or agents, be restrained from entering upon or approaching the property situated at 20 Valleyview Crescent, Greenwich, save at the express invitation of the defendant; and

2. That pending further order the defendant be granted the exclusive use and occupation of the property situated at 20 Valleyview Crescent, Greenwich.

2 The notice of motion is one filed by defendant, Ms Scheiff, in proceedings which the plaintiff, Dr Nguyen, has commenced for adjustment of property interest under s 20 of the Property (Relationships) Act 1984. For convenience, I will refer to the parties by name rather than by their role in litigation from now on.

3 There is a certain amount of common ground in the application. It is common ground…

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 Nguyen v Scheiff

Details

AGLC: Nguyen v Scheiff [2002] NSWSC 151
Case: [2002] NSWSC 151
Decision Date: 27 February 2002

CaseChat Overview and Summary

In the case of Nguyen v Scheiff, the parties were in a de facto relationship and jointly owned a property. The dispute arose when the respondent applied for an interlocutory order for exclusive occupation of the family home under section 53 of the Property (Relationships) Act 1984 (Vic), while the applicant sought an adjustment of their property interest under section 20 of the same Act. The matter was heard in the Supreme Court of Victoria.

The central legal issues in the case were whether the Supreme Court had the power to grant an interlocutory order for exclusive occupation of the family home, the applicability of principles from section 114 of the Family Law Act 1975 (Cth) in the context of section 53 of the Property (Relationships) Act 1984 (Vic), and whether the court could take into account contributions made by the parties after the conclusion of their relationship when adjusting property interests. Additionally, the court had to determine whether an interlocutory order for exclusive occupation required the person granted the order to pay an occupation fee.

The Supreme Court held that it had the power to grant an interlocutory order for exclusive occupation of the family home under section 53 of the Property (Relationships) Act 1984 (Vic). The court also found that the principles from section 114 of the Family Law Act 1975 (Cth) could be applied in the context of section 53 of the Property (Relationships) Act 1984 (Vic) and that the court could take into account contributions made after the conclusion of the relationship when adjusting property interests. However, the court ruled that an interlocutory order for exclusive occupation did not require the person granted the order to pay an occupation fee.

The final orders of the court were that the respondent was granted an interlocutory order for exclusive occupation of the family home and that the applicant's property interest was adjusted to reflect the contributions made by both parties during and after the relationship. The court did not require the respondent to pay an occupation fee as part of the interlocutory order.

Orders