Parsons v Storm - [2009] NSWCA 288

New South Wales

Court of Appeal

CITATION: Parsons v Storm [2009] NSWCA 288

HEARING DATE(S): 25 August 2009

JUDGMENT DATE:
16 September 2009

JUDGMENT OF: Giles JA at 1; Tobias JA at 53; Macfarlan JA at 54

DECISION: Appeal dismissed with costs.

CATCHWORDS: De facto relationship - claim under Property (Relationships) Act 1984 for adjustment of interests after relationship ceased - equality as at cessation - jointly held land - thereafter both parties acquired land in part using resources from their jointly held land - one party realised capital profit - other party's land increased in value - judge held no injustice or inequity calling for adjustment of interests - no error in exercise of discretion - cross-claim for half proceeds of sale of jointly held land therefore succeeded - whether interest on relevant amount properly included in judgment - again no error in exercise of discretion.

CASES CITED: Davey v Lee (1990) 13 Fam LR 688;
House v The King (1936) 55 CLR 499;
Kardos v Sarbutt [2006] NSWCA 11; (2006) Fam LR 550;
Manns v Kennedy [2007] NSWCA 217;
Ross v Elderfield [2006] NSWCA 192.

PARTIES: Christopher Leo Parsons - Appellant
Ann Louise Storm - Respondent

FILE NUMBER(S): CA 40120/09

COUNSEL: P G Maiden SC & A D B Fox - Appellant
M J Watts - Respondent

SOLICITORS: Blanchfield Nicholls Partners - Appellant
Mark Ireland Lawyers, Bathurst - Respondent

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 1027/06

LOWER COURT JUDICIAL OFFICER: Palmer J

LOWER COURT DATE OF DECISION: 12 March 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Parsons v Storm [2009] NSWSC 166

CA 40120/09
SC 1027/06

GILES JA
TOBIAS JA
MACFARLAN JA
Wednesday 16 September 2009

PARSONS v STORM

Judgment

1 GILES JA: The appellant and the respondent were in a de facto relationship from May 1995 to January 2000. They brought to their relationship assets of about equal value. They were both employed and had about the same income. They contributed equally to their living expenses. After the relationship began they purchased as joint tenants a property at Botany (“the Botany property”) for $435,000, in which they lived. They borrowed jointly on mortgage to finance the purchase, and by the time the relationship came to an end they had contributed equally to the mortgage repayments and other expenses relating to the Botany property.

2 The appellant claimed an adjustment of interests in property pursuant to s 20 of the Property (Relationships) Act 1984 (“the Act”). The respondent cross-claimed in substance to recover the value of her half-share in the Botany property. The proceedings were principally concerned with what happened after the relationship ended.

Events after the relationship ended

3 In January 2000 the respondent accepted an offer of employment in Melbourne. She vacated the Botany property and left Sydney. The appellant remained in occupation of the Botany property, part of which was rented out, until it was later sold.

4 In February 2000 the respondent entered…

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 Parsons v Storm

Details

AGLC: Parsons v Storm [2009] NSWCA 288
Case: [2009] NSWCA 288
Decision Date: 16 September 2009

CaseChat Overview and Summary

The appeal concerned a dispute between former de facto partners, Parsons and Storm, following the cessation of their relationship. The primary issue was whether an adjustment of interests in property was warranted under the *Property (Relationships) Act 1984* (NSW). The primary judge had found that no such adjustment was necessary, leading to the dismissal of the appellant's claim for an adjustment.

The court was required to determine whether the primary judge had erred in exercising their discretion by finding that no injustice or inequity arose from the property arrangements following the relationship's end. Specifically, the court considered whether the primary judge correctly assessed the parties' respective contributions and the fairness of the property division, particularly in light of subsequent acquisitions and capital profits derived from jointly held land. The inclusion of interest on a relevant amount in the judgment was also a point of contention.

The appellate court upheld the primary judge's decision, finding no error in the exercise of discretion. The reasoning focused on the fact that both parties had acquired further land using resources from their jointly held property, and that one party had realised a capital profit while the other's land had increased in value. The court concluded that these developments did not create an injustice or inequity that necessitated a further adjustment of interests. Consequently, the cross-claim for half the proceeds of the sale of the jointly held land was upheld, and the inclusion of interest was also deemed a proper exercise of discretion.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

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:	Parsons v Storm [2009] NSWCA 288
HEARING DATE(S):	25 August 2009
JUDGMENT DATE:	16 September 2009
JUDGMENT OF:	Giles JA at 1; Tobias JA at 53; Macfarlan JA at 54
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	De facto relationship - claim under Property (Relationships) Act 1984 for adjustment of interests after relationship ceased - equality as at cessation - jointly held land - thereafter both parties acquired land in part using resources from their jointly held land - one party realised capital profit - other party's land increased in value - judge held no injustice or inequity calling for adjustment of interests - no error in exercise of discretion - cross-claim for half proceeds of sale of jointly held land therefore succeeded - whether interest on relevant amount properly included in judgment - again no error in exercise of discretion.
CASES CITED:	Davey v Lee (1990) 13 Fam LR 688; House v The King (1936) 55 CLR 499; Kardos v Sarbutt [2006] NSWCA 11; (2006) Fam LR 550; Manns v Kennedy [2007] NSWCA 217; Ross v Elderfield [2006] NSWCA 192.
PARTIES:	Christopher Leo Parsons - Appellant Ann Louise Storm - Respondent
FILE NUMBER(S):	CA 40120/09
COUNSEL:	P G Maiden SC & A D B Fox - Appellant M J Watts - Respondent
SOLICITORS:	Blanchfield Nicholls Partners - Appellant Mark Ireland Lawyers, Bathurst - Respondent
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 1027/06
LOWER COURT JUDICIAL OFFICER:	Palmer J
LOWER COURT DATE OF DECISION:	12 March 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Parsons v Storm [2009] NSWSC 166