Ross v Ross

The appeal in *Ross v Ross* concerned a dispute between former de facto partners regarding the adjustment of their property interests. The primary legal question before the Court of Appeal of New South Wales was whether the court had the discretion to vary or set aside existing property adjustment orders made under section 20 of the *Property (Relationships) Act 1984* (NSW), and the relevance of various factors to the exercise of that discretion. A secondary issue involved the scope of the court's discretion under section 66G of the *Conveyancing Act 1919* (NSW) to refuse an order appointing trustees for sale, and whether this discretion extended to altering co-owners' property rights or other legal or equitable rights.

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.