Court of Appeal
New South Wales
Case Title: Separovich v Ferrao Medium Neutral Citation: [2011] NSWCA 180 Hearing Date(s): 9 February 2011 Decision Date: 06 July 2011 Jurisdiction: Before: Beazley JA at [1];
McColl JA at [81];
Macfarlan JA at [82]Decision: 1. Appeal against orders (1) and (2) made by McLaughlin AsJ on 24 March 2010 dismissed;
2. Further to order (1) made by McLaughlin AsJ on 24 March 2010 order that:
(a) simultaneously upon payment to the plaintiff by the defendant of the sum of $160,000, the plaintiff transfer to the defendant her right, title and interest in the property situated at Quinalup Street, Gwandalan and the defendant cause the discharge of the mortgage to the Westpac Bank;
(b) the defendant indemnify the plaintiff in respect of her liability under the Westpac mortgage on and from 24 March 2010;
3. Stand over the final determination of the appeal against order (3) in respect of the costs of the proceedings at first instance made by McLaughlin AsJ pending the parties making further submissions thereon;
4. Stand over any order as to the costs of the appeal pending the parties making further submissions thereon;
5. Direct the respondent to file any written submissions in respect of costs of the proceedings at first instance and on appeal within 14 days of today's date;
6. Direct the appellant to file any submissions in reply within 14 days of receipt of the respondent's submissions.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: FAMILY LAW - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - Property (Relationships) Act 1984, s 20 - whether order of the trial judge for adjustment was just and equitable - whether trial judge erred in failing to set out asset pool and resources of parties - no error in trial judge's assessment of parties' contributions - trial judge made reference to all of the assets of the parties - trial judge determination involved exercise of discretion - no requirement that the Court deal with assets in a particular manner
FAMILY LAW - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - Property (Relationships) Act 1984, s 20 - money from joint bank accounts spent on gambling activities - significance of gambling activities
Legislation Cited: Cases Cited: Armory v Delamirie (1722) 1 Stra 505
Bilous v Mudaliar [2006] NSWCA 38; 65 NSWLR 615
Calderbank v Calderbank [1975] 3 All ER 333
Chanter v Catts [2005] NSWCA 411; 64 NSWLR 411
Davey v Lee (1990) 13 Fam LR…
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- AGLC
- Separovich v Ferrao [2011] NSWCA 180
- Case
- [2011] NSWCA 180
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the trial judge erred in making an order for the adjustment of property interests under section 20 of the *Property (Relationships) Act 1984* (NSW), specifically whether the order was just and equitable, and whether the trial judge failed to adequately set out the asset pool and resources of the parties. The significance of money from joint bank accounts being spent on gambling activities was also a consideration.
The Court of Appeal found no error in the trial judge's assessment of the parties' contributions. It was held that the trial judge had made reference to all of the assets of the parties and that the determination involved an exercise of discretion, with no requirement for the Court to deal with assets in a particular manner. The Court affirmed that the trial judge's determination was a just and equitable exercise of discretion.
The appeal against the primary property adjustment orders was dismissed. The Court ordered that upon payment of $160,000 by the defendant to the plaintiff, the plaintiff was to transfer her interest in a property at Quinalup Street, Gwandalan, and the defendant was to arrange the discharge of a mortgage. The defendant was also ordered to indemnify the plaintiff regarding her liability under the mortgage from 24 March 2010. The final determination of the appeal concerning costs was stood over pending further submissions from the parties.
Orders
Orders of the court
1. Appeal against orders (1) and (2) made by McLaughlin AsJ on 24 March 2010 dismissed;
2. Further to order (1) made by McLaughlin AsJ on 24 March 2010 order that:
(a) simultaneously upon payment to the plaintiff by the defendant of the sum of $160,000, the plaintiff transfer to the defendant her right, title and interest in the property situated at Quinalup Street, Gwandalan and the defendant cause the discharge of the mortgage to the Westpac Bank;
(b) the defendant indemnify the plaintiff in respect of her liability under the Westpac mortgage on and from 24 March 2010;
3. Stand over the final determination of the appeal against order (3) in respect of the costs of the proceedings at first instance made by McLaughlin AsJ pending the parties making further submissions thereon;
4. Stand over any order as to the costs of the appeal pending the parties making further submissions thereon;
5. Direct the respondent to file any written submissions in respect of costs of the proceedings at first instance and on appeal within 14 days of today's date;
6. Direct the appellant to file any submissions in reply within 14 days of receipt of the respondent's submissions.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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