Ross v Elderfield

[2006] NSWCA 192

Reported Decision: (2006) DFC 95-338

Court of Appeal

CITATION:	Ross v Elderfield [2006] NSWCA 192
HEARING DATE(S):	6 March 2006
JUDGMENT DATE:	4 August 2006
JUDGMENT OF:	Handley JA at 1; McColl JA at 54; Hislop J at 55
DECISION:	(1) Appeal allowed in part.; (2) Judgment for the plaintiff in the District Court for $133,000 set aside.; (3) In lieu thereof substitute judgment for the plaintiff for $112,403 with effect from 24 March 2005.; (4) Judgment in the District Court otherwise confirmed.; (5) Appellant to pay half the respondent’s costs of the appeal.; (6) Liberty to either party to seek a different order in respect of the costs of the trial or a different order in respect of the costs of the appeal based on the offer of compromise made on 26 November 2004 or any offer of compromise made after the appeal was instituted.; (7) The party seeking such a variation is to serve his or her written submissions within 10 days of the making of these orders and the other party is to file his or her written submissions in reply within a further 10 days. In each case the submissions should be left in the submissions box on level 12.
CATCHWORDS:	DE FACTO RELATIONSHIPS – financial contributions – relevance of inheritance – relevance of capital gain – appropriate date for valuation – weight to be given to initial and post acquisition contributions - D
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Bilous v Mudaliar [2006] NSWCA 38 Davey v Lee (1990) 13 Fam LR 688 Evans v Marmont (1997) 42 NSWLR 70 Kardos v Sarbutt [2006] NSWCA 11 Powell v Supresencia (2003) 30 Fam LR 463 The Macgregor [1943] AC 197 Wallace v Stanford (1995) 37 NSWLR 1
PARTIES:	Lynette Ann Ross (Appellant) John Jacques Elderfield (Respondent)
FILE NUMBER(S):	CA 40297 of 2005
COUNSEL:	D Flaherty/G Van der Vlag (Appellant) R Lethbridge SC/M Bateman (Respondent)
SOLICITORS:	Cameron Gillingham Boyd (Appellant) Conditsis & Associates (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3643 of 2003
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ
LOWER COURT DATE OF DECISION:	24 March 2005

CA 40297 of 2005

HANDLEY JA
McCOLL JA
HISLOP J

4 AUGUST 2006

LYNETTE ANN ROSS v JOHN JACQUES ELDERFIELD

CATCHWORDS

DE FACTO RELATIONSHIPS – financial contributions – relevance of inheritance – relevance of capital gain – appropriate date for valuation – weight to be given to initial and post acquisition contributions

FACTS

The parties had been in a de facto relationship between February 1995 and March 2002. The appellant challenged the order for adjustment of interests made by the trial Judge under s 20 of the Property (Relationships) Act 1984 based on the increased value of a house she owned. The appellant’s initial equity in the house was acquired from the proceeds of an inheritance. The Judge found that the parties’ non-financial contributions were approximately equal but the respondent’s direct and indirect financial contributions after the house was acquired were greater than…