Robertson v Fox

[2008] VSC 199

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6191 of 2005

NARELLE DAWN ROBERTSON	Plaintiff
v
IAN LESLIE FOX	Defendant

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JUDGE:	Cummins  J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2008
DATE OF JUDGMENT:	10 June 2008
CASE MAY BE CITED AS:	Robertson v Fox
MEDIUM NEUTRAL CITATION:	[2008] VSC 199

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PROPERTY – domestic partners – Part IX Property Law Act 1958 – judgment given – interest and costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	C Northrop	Morrison and Sawers
For the Defendant	K Macfarlane	Andrew Spilva Stewart & Co.

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HIS HONOUR:

BASE AMOUNT

1. The base amount of the judgment herein is $496,622.

CAPITAL GAINS TAX

1. From that amount should be deducted the sum of $4421, being half of the defendant’s capital gains tax liability ($8842) in excess of that of the plaintiff on the Mooroopna sale proceeds ($12,632 less 30%).

1. Therefore the substantive amount of judgment is $492,201.

INTEREST

1. The awarding of interest thereon is according to equitable principle of being just to the parties given the findings of fact[1].  In the holistic circumstances of the case – a domestic relationship of nearly two decades in which no major adverse finding of causal conduct as to separation is made – it is not just to award interest since date of issuance of proceedings or penalty interest on judgment.  It is submitted on behalf of the plaintiff that interest should be awarded since judgment, on general principle and because as there are no orders for transfer or sale the defendant will retain increases in value.  I do not consider it just to award interest since issuance of proceedings: first (and less significantly) because the amount awarded was not for a debt, sum certain or pursuant to constructive trust; second (and more significantly) because the judgment was one comprehending the holistic personal and financial relationship of domestic partners over nearly two decades; and third because the plaintiff resides in the Cobram unencumbered premises whereas the defendant presently resides in rented accommodation.  As to interest since judgment, I consider it is just to order interest at the rate of 7.5%.

[1]See generally Manns v Kennedy [2007] NSW CA 217 per Campbell J.A. (with whom Santow J.A. and Bryson A.J.A. agreed) at [137] – [146] and Vollmer v Hauber Davidson [2006] NSW CA 79 per Hislop J (with whom Mason P and Ipp J.A. agreed) at [21].

1. Accordingly interest is awarded in favour of the plaintiff in the sum of 7.5% on $492,201 since 24 April 2008.

COSTS

1. The proceeding is a proceeding in the Common Law Division of this Court.  The normal rule is that costs follow the event.  It is irrelevant, and also speculative, as to what order as to costs might be made in another jurisdiction or at another time in legislative history.

1. I order that the defendant pay the plaintiff’s costs of the proceedings including any reserved costs.

ORDERS

1. Orders shall be made in accordance with the Minute of Proposed Order on behalf of the plaintiff on 5 June 2008 except that in paragraph one the sum should read

   
   

   $492,201 and in paragraph 2(a) the rate of interest should be 7.5%.

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