Simmons v Williams - [2002] SADC 168

SIMMONS v WILLIAMS
[2002] SADC 168
His Honour Judge Robertson
Civil
Nature of the Proceedings

The Plaintiff and the Defendant seek a division of property pursuant to Section 10 of the De Facto Relationships Act 1996 (sometimes called “the Act”). The Plaintiff in his claim, seeks an equal division of the property the subject of the proceedings. By the end of the hearing, the Defendant in her counterclaim, sought a division of the property the subject of the proceedings, on the basis that the Plaintiff receive twentyfive percent to thirty percent thereof and that she receive the remainder. I have used the expression “the property the subject of the proceedings” deliberately. Both parties have agreed that they only seek a division of property with respect to a house at Wattle Street, Malvern and a fund of approximately $67,000, being the net proceeds of the sale of another house at Williamstown in Victoria. It is agreed by the parties that property currently in possession of either party, other than the property the subject of the proceedings, will remain the property of that party.
The Relevant Provisions of the De Facto Relationships Act.
I mentioned that the claim and the counterclaim of the Plaintiff and the Defendant respectively have been brought pursuant to Section 10 of the Act. Section 10 (1) of the Act provides:-
“10. (1) On an application for the division of property, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.”
Section 11(1) of the Act sets out matters for consideration by a court when determining whether to make an order pursuant to Section 10 of the Act. Section 11(1) of the Act provides:-
“11.(1) In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court –
(a)must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to –
(i)the acquisition, conservation or improvement of property of either or both partners; or
(ii)the financial resources of either or both partners; and
(b)must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and
(c)must have regard to the terms of any relevant cohabitation agreement; and
(d)may have regard to other relevant matters.”.
There is an obligation upon a Court to consider the contributions described in Section 11(1)(a) and (b). By contrast, Section 11(1)(d) provides for a Court to take into account such other matters which the court considers to be relevant. It is a discretionary provision, which by its very language indicates that its application is of wide import. (see: Germinario v Pinkerton (2000) 209 LSJS 419). In my view its application is not confined to matters of a financial nature.
The structure…

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 Simmons v Williams

Details

AGLC: Simmons v Williams [2002] SADC 168
Case: [2002] SADC 168
Decision Date: 13 December 2002

CaseChat Overview and Summary

This is a property dispute between the parties, who were in a de facto relationship for a period of six years. The proceedings were brought pursuant to the De Facto Relationships Act 1996 (SA) (the Act). The Plaintiff and the Defendant seek a division of the property, being a house at Wattle Street, Malvern and a fund of approximately $67,000, being the net proceeds of the sale of another house at Williamstown in Victoria. The Plaintiff seeks an equal division of the property, whereas the Defendant seeks to receive the majority of the property. The court held that the property should be divided in the proportions of forty percent to the Plaintiff and sixty percent to the Defendant. The court also ordered that the Wattle Street property be sold by public auction and the net proceeds be divided in the proportions determined by the court. The court also ordered that the remaining $3,000 owing to the Plaintiff’s mother from the original debt of $4,500 be repaid.

Orders