SANDONA v PERRE (No 2) - [2010] SADC 34

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SANDONA v PERRE (No 2)
[2010] SADC 34
Judgment of His Honour Judge Barrett
15 March 2010
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
Costs - Plaintiff seeks an order for costs - property adjustment proceedings in de facto relationship - Judgment for plaintiff in a sum larger than pre-trial offer but not significantly larger than offer during trial. Defendant always conceded plaintiff entitled to a property adjustment. Parties' evidence presented similarly. Ordinarily costs follow the event but in the circumstances of this case no order for costs.
Interest - Plaintiff's claim effectively for a monetary sum. Defendant had the benefit of plaintiff's contribution to the renovation of her house - plaintiff entitled to 5.6 per cent interest from completion of renovations to judgment. The average annual increase in the value of defendant's house was 5.6 per cent.
De Facto Relaltionships Act 1996 s 4(1); District Court Act 1991 s 39, referred to.
M, DA v P, N (No 2) [2008] SADC 180; Ewins v BHP Billiton Limited & Wallaby Grip Limited (No 2) [2005] SASC 164, considered.

SANDONA v PERRE (No 2)
[2010] SADC 34
Introduction

Judgment was delivered in this matter on 5 February 2010. The matter was adjourned to enable the parties to make submissions on the questions of interests and costs.
Trial
The trial concerned a property adjustment between the parties who had lived together but had not married. There were two main issues for consideration. First, the length of the relationship was in dispute. The plaintiff said the relationship lasted over 3 years, in which case the property adjustment was to be determined by reference to the De Facto Relationships Act 1996. The defendant said it lasted less than 3 years, in which case the Common Law would be applicable.
I accepted the plaintiff’s version of the facts where it differed from the defendant, but the resolution of this issue was largely an exercise in applying a legal descriptor to facts which were not widely at variance.
Second, the extent of the property adjustment was in dispute. During the 3 years that the parties co-habited they lived in the defendant’s house. The plaintiff sold his house. The plaintiff contributed some of his own money to the renovation of the defendant’s house. The defendant did not dispute that the plaintiff had made a contribution. She disputed the extent of it. In his pleadings the plaintiff sought approximately $39,000. At one stage in his evidence he claimed he had contributed $89,000. In her pleadings the defendant said the plaintiff contributed half the cost of the renovations which amounted to no more than $21,000. Hence his contribution was $10,500 (Judgment [50]).
I found neither party was able to give reliable evidence about the expenditure on labour and materials (Judgment [47]-[59]). Despite a degree of acrimony and exaggeration on the part by each party, I accepted generally that each was trying to be truthful. In the end I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SANDONA v PERRE (No 2)

Details

AGLC: Sandona v Perre (No 2) [2010] SADC 34
Case: [2010] SADC 34
Decision Date: 15 March 2010

CaseChat Overview and Summary

The case of Sandona v Perre (No 2) involved a dispute between the plaintiff and the defendant over property adjustment in the context of a de facto relationship. The matter was heard in a family law court. The plaintiff sought an order for costs and interest following a judgment in their favour, which was larger than the pre-trial offer but not significantly larger than the offer made during the trial. The defendant had always conceded that the plaintiff was entitled to a property adjustment. The evidence presented by both parties was similar, and the plaintiff’s claim was effectively for a monetary sum.

The court had to determine whether the plaintiff was entitled to costs and interest. Ordinarily, costs follow the event, but in this case, the court considered the circumstances and decided that no order for costs should be made. The court noted that the defendant had benefited from the plaintiff’s contribution to the renovation of her house. Therefore, the plaintiff was entitled to interest at the rate of 5.6 per cent from the completion of the renovations to the date of judgment. This rate was based on the average annual increase in the value of the defendant’s house.

The court's reasoning was influenced by the nature of the proceedings and the outcome of the case. The court acknowledged the plaintiff’s entitlement to interest but decided against awarding costs, considering the overall circumstances and the similarity in the evidence presented by both parties. The court made an order for the plaintiff to receive interest at the rate of 5.6 per cent from the completion of renovations to the date of judgment, without making any order for costs.

Orders