Reported Decision:
(2006) DFC 95-330
Court of Appeal
CITATION: SELMORE v BULL [2005] NSWCA 365
HEARING DATE(S): 14 October 2005
JUDGMENT DATE:
28 October 2005JUDGMENT OF: Mason P at 1; Tobias JA at 59; Brownie AJA at 60
DECISION: Appeal dismissed except as to costs order.
CATCHWORDS: PROPERTY - FAMILY LAW - de facto relationship - Property (Relationships) Act 1984 - statutory discretion to adjust property interests pursuant to s20 - where one partner continued to live rent-free in family property after separation - where subsequently asked to leave the property - where partner deferred instituting proceedings - time limit under s18 - discretion to extend time - forensic prejudice from delay - hardship - indemnity costs set aside - failure to accept settlement offer - offer made too late in proceedings. (ND)
LEGISLATION CITED: CASES CITED: Bull v Selmore [2004] NSWSC 1059
Beavan v Fallshaw (1992) 15 Fam L R 686
Carlon and Carlon (1982) FLC 91-272
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Fox v Percy (2003) 214 CLR 118
Foster v Evans ((1997) DFC 95-193
Jones v Grech [2001] NSWCA 208, (2001) 27 Fam LR 711PARTIES: Trevor John SELMORE v Christine Ann BULL
FILE NUMBER(S): CA 41148/04
COUNSEL: Appellant: M Einfeld QC/ L Snelling
Respondent: P Maiden SC/ T MaltzSOLICITORS: Appellant: Milne Berry Berger
Respondent: Truman Hoyle
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): SC 5143/02
LOWER COURT JUDICIAL OFFICER: Master Macready
CA 41148/2004
Friday 28 October 2005MASON P
TOBIAS JA
BROWNIE AJA
JUDGMENT
1 MASON P: The parties lived together in a de facto relationship between October 1978 and September 1986, apart from a short separation in 1979. The appellant had been born in 1939, the respondent in 1948. Their child Jennifer was born on 17 December 1978.
2 The appellant purchased a house property at Mt Colah in June 1986. That was the year Jennifer commenced her schooling. It was also the year, in September, when the parties separated. The appellant then commenced living with a woman with whom he had jointly purchased a property at Hornsby in the same month that he had bought Mt Colah.
3 After the separation, the appellant permitted the respondent and their daughter to continue living at Mt Colah rent-free. The appellant also provided weekly maintenance of $40 for the daughter presumably until she turned 18. He also did maintenance, repair work, renovation and landscaping at the house.
4 The respondent was not in paid employment during Jennifer's early years. But after the couple separated she worked in various positions, using her wages to pay living expenses. She was the primary caregiver for Jennifer.
5 After separation, the relationship between the parties continued in a civilised manner. In May 1992 the appellant installed a shed at Mt Colah. He commenced using it for his residence at least two or three nights a week…
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- AGLC
- Selmore v Bull [2005] NSWCA 365
- Case
- [2005] NSWCA 365
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the trial judge erred in exercising their statutory discretion under section 20 of the *Property (Relationships) Act 1984* to adjust the property interests of the parties, and whether the trial judge was correct in extending the time limit for instituting proceedings under section 18 of the Act, despite the delay. The court also considered the impact of forensic prejudice and hardship caused by the delay, as well as the appropriateness of an indemnity costs order and a late settlement offer.
The appellate court found that the trial judge had not erred in exercising the discretion under section 20, nor in extending the time for the proceedings, as the delay did not cause significant forensic prejudice to Mr Selmore and there were compelling reasons of hardship for the extension. However, the court did set aside the indemnity costs order made at first instance, finding it was not justified, and also commented on the late settlement offer. The appeal was dismissed in its entirety except for the costs order.
Orders
Orders of the court
Appeal dismissed except as to costs order.
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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