Sammons v Eykelenkamp

[2011] NSWDC 23

District Court

New South Wales

Medium Neutral Citation:	Sammons v Eykelenkamp [2011] NSWDC 23
Hearing dates:	23 March 2011
Decision date:	23 March 2011
Before:	Gibson DCJ
Decision:	(1) The Court has jurisdiction to make orders for property adjustment under the Property (Relationships) Act 1984 (NSW) in these proceedings.
Catchwords:	COURTS - jurisdiction - application for adjustment of property pursuant to s 20 Property (Relationships) Act 1984 (NSW) - jurisdiction of District Court to determine beneficial ownership under s 20 limited to $250,000 - whether court has jurisdiction
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 District Court Act 1973 (NSW), s 51 Property (Relationships) Act 1984 (NSW), s 20
Cases Cited:	Bourdon v Outridge [2006] NSWSC 491 Evans v Marmont (1997) 42 NSWLR 70 Haley v Perkins [2010] NSWSC 1091 Howard v Trosse [2008] NSWDC 328 Smith v Forbes [2009] NSWDC 62 Weeden v Burke [2008] NSWDC 148
Texts Cited:	Uniform Civil Procedure Practice
Category:	Separate question
Parties:	Plaintiff: Sharon Thelma Sammons Defendant: Mark Henri Eykelenkamp
Representation:	Plaintiff: Mr P Schroder Defendant: Mr G Dilworth Plaintiff: Matthews Dooley & Gibson Defendant: Cameron Legal
File Number(s):	101413 of 2010

Judgment

1. These are my reasons for holding that the District Court has jurisdiction to hear these proceedings.

1. The plaintiff and defendant are parties to an application for adjustment of property pursuant to s 20 Property (Relationships) Act 1984 (NSW) ("the Act"). The parties have lived in a domestic relationship for 16 years. There is one child to the relationship, who is currently aged 16 years.

1. Before I commence to hear the application, the plaintiff seeks a ruling as to the jurisdiction of this court, by reason of the interaction of s 51 District Court Act 1973 (NSW) with s 20 of the Act. The size of the asset pool is an essential issue in the steps the court must take when determining claims under the Act. Evans v Marmont (1997) 42 NSWLR 70 identifies these steps as follows:

(a) Identification and valuation of the asset pool;

(b) Identification of the contributions of each of the parties;

(c) The making of an order which is just and equitable, having regard to those contributions.

1. The court can only adjust interests with respect to the property of the parties to the relationship, or either of them, pursuant to ss 20(1)(a) and 20(1)(b) of the Act. Section 38(1) also empowers the court in this regard to make a wide range of orders, ranging from the sale or transfer of property to the distribution of the proceeds of sale in such proportion as the court may consider just and equitable. It is not always necessary to determine the parties' beneficial ownership of all property, as Gleeson CJ and McLelland CJ in Eq noted in Evans v Marmont at 84E.

1. Counsel for the plaintiff points out that jurisdictional issues may arise where the asset pool for which orders must be made exceeds $250,000. Section 51 of the District Court Act 1973 (NSW) provides:

" 51 Consent…