New South Wales
Court of Appeal
CITATION: Ross v Ross [2010] NSWCA 301 HEARING DATE(S): 23 August 2010
JUDGMENT DATE:
12 November 2010JUDGMENT OF: Campbell JA at 1; Macfarlan JA at 2; Sackville AJA at 61 DECISION: (1) Appeal allowed;
(2) Set aside the orders made by Ward J on 31 August 2009;
(3) Order the respondent to pay the appellant’s costs of the appeal;
(4) Direct the parties to attempt to reach agreement as to the appropriate form of orders to give effect to this judgment, including an order as to the costs at first instance;
(5) If the parties are able to reach such agreement, direct that a signed form of consent order be lodged with the Court within 14 days of the date of this judgment; and
(6) If the parties cannot reach such agreement, direct:
(a) the appellant within 14 days of the date of this judgment to file and serve the form of orders proposed by her together with brief written submissions in support, including as to the appropriate order concerning costs at first instance;
(b) within 14 days’ thereafter, the respondent to file and serve his proposed form of orders and written submissions in support;
(c) within a further 7 days, the appellant to file and serve any response; and
(d) the resolution of any issue as to the form of orders to be made is to be determined by the Court upon the basis of the parties’ written submissions without any further oral hearing.CATCHWORDS: FAMILY LAW - de facto relationships - adjustment of property interests - s 41(c) Property (Relationships) Act 1984 - Court's discretion to vary or set aside orders made under s 20 - relevance of various factors to exercise of Court's discretion - REAL PROPERTY - s 66G Conveyancing Act 1919 - scope of discretion to refuse order appointing trustees for sale - whether Court has discretion under s 66G to alter the co-owners' property and other legal or equitable rights LEGISLATION CITED: Conveyancing Act 1919
Limitation Act 1969
Property (Relationships) Act 1984CATEGORY: Principal judgment CASES CITED: Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2008] NSWSC 839; (2008) 14 BPR 149
Callow v Rupchev [2009] NSWCA 148
Forgeard v Shanahan (1994) 35 NSWLR 206
Hogan v Baseden (1997) 8 BPR 15,723
In the Marriage of Simpson and Hamlin (1984) 9 Fam LR 1040
Re Fettel (1952) 52 SR (NSW) 221
Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068
Stephens v Debney (1960) SR (NSW) 468
Williams v Legg (1993) 29 NSWLR 687
Williams v Williams [1979] 1 NSWLR 376TEXTS CITED: Professor Butt, Land Law, 6th ed (2010) Lawbook Co
R Meagher, D Heydon and M Leeming, Meagher Gummow and Lehane’s Equity: Doctrines and Remedies, 4th ed (2002) Butterworths LexisNexis AustraliaPARTIES: Susan Elizabeth Ross (Appellant)
Peter John Ross (Respondent)FILE NUMBER(S): CA 2009/298309 COUNSEL: C M Simpson SC/M Fraser (Appellant)
P Smart (Respondent)SOLICITORS: Rosen Lawyers (Appellant)
Richard…
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- AGLC
- Ross v Ross [2010] NSWCA 301
- Case
- [2010] NSWCA 301
- Decision Date
CaseChat Overview and Summary
The Court of Appeal determined that the primary judge had erred in her approach to the application to vary the property adjustment orders. The Court reasoned that the discretion to vary or set aside orders under section 41(c) of the *Property (Relationships) Act 1984* (NSW) was broad and required a consideration of all relevant circumstances, including those that arose after the original orders were made. The Court clarified that the discretion under section 66G of the *Conveyancing Act 1919* (NSW) to refuse an order for sale was limited and did not extend to altering the fundamental property rights of co-owners.
The Court of Appeal allowed the appeal, set aside the orders made by Ward J on 31 August 2009, and ordered the respondent to pay the appellant’s costs of the appeal. The parties were directed to attempt to reach agreement on the appropriate form of orders to give effect to the judgment, including costs at first instance. If agreement could not be reached, a detailed process for lodging proposed orders and written submissions was outlined, with the final resolution of any outstanding issues to be determined by the Court on the basis of those submissions without further oral hearing.
Orders
Orders of the court
(1) Appeal allowed;
(2) Set aside the orders made by Ward J on 31 August 2009;
(3) Order the respondent to pay the appellant’s costs of the appeal;
(4) Direct the parties to attempt to reach agreement as to the appropriate form of orders to give effect to this judgment, including an order as to the costs at first instance;
(5) If the parties are able to reach such agreement, direct that a signed form of consent order be lodged with the Court within 14 days of the date of this judgment; and
(6) If the parties cannot reach such agreement, direct:
(a) the appellant within 14 days of the date of this judgment to file and serve the form of orders proposed by her together with brief written submissions in support, including as to the appropriate order concerning costs at first instance;
(b) within 14 days’ thereafter, the respondent to file and serve his proposed form of orders and written submissions in support;
(c) within a further 7 days, the appellant to file and serve any response; and
(d) the resolution of any issue as to the form of orders to be made is to be determined by the Court upon the basis of the parties’ written submissions without any further oral hearing.
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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