WAYNE JAMES SMITH v KAYE LOUISE CHAMPION
[2009] ACTCA 7 (5 May 2009)
FAMILY LAW – de facto relationship – distribution of property of parties – two pieces of real property included in property of parties – whether trial judge failed to recognise appellant’s financial contributions in relation to first piece of real property – whether appellant should have received capital appreciation of first piece of real property – whether trial judge erred in failing to find financial contributions by parties were equal – whether trial judge failed to consider whether respondent acted recklessly, negligently or wantonly with respect to property – whether trial judge failed to take into account in assessing financial contributions in relation to second piece of real property respondent’s refusal to accede to appellant’s requests to sell, respondent’s sole occupation after end of relationship and respondent’s failure to make mortgage payments
Held: appeal allowed – appellant entitled to additional sum of $16,000 for one contribution in relation to first piece of real property – all other issues decided in favour of respondent.
Family Law Act 1975 (Cth)
Property (Relationships) Act 1984 (NSW) ss 5, 19, 20, 38
AJO v GRO (2005) 191 FLR 317
Bilous v Mudaliar (2006) 65 NSWLR 615
Burgess v King (2005) 64 NSWLR 293
Caplice v Aroogah Investments Pty Ltd [2005] NSWSC 287
Evans v Marmont (1997) 42 NSWLR 70
Howlett v Neilson (2005) 33 Fam LR 402
In Marriage of Money (1994) 117 FLR 372
In Marriage of Way (1995) 124 FLR 447
In the Marriage of Kowaliw and Kowaliw [1981] FLC 91-092
In the Marriage of Townsend (1994) 18 Fam LR 505
Kardos v Sarbutt (2006) 34 Fam LR 550
Manns v Kennedy (2007) 37 Fam LR 489
Vitali v Stachnik (2001) 28 Fam LR 142
Waring v Ellis (2005) 13 BPR 24, 459
Whiterod and Taylor [2006] FLC 93-266
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 25 of 2007
No. SC 270 of 2005
Judges: Higgins CJ, Refshauge and Besanko JJ
Court of Appeal of the Australian Capital Territory
Date: 5 May 2009
IN THE SUPREME COURT OF THE ) No. ACTCA 25 of 2007
) No. SC 270 of 2005
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: WAYNE JAMES SMITH
Appellant
AND: KAYE LOUISE CHAMPION
Respondent
ORDER
Judges: Higgins CJ, Refshauge and Besanko JJ
Date: 5 May 2009
Place: Canberra
THE COURT ORDERS THAT:
Each party has leave to file and serve within 7 days of the date hereof draft minutes of order reflecting the conclusions expressed in these reasons.
Each party has leave to file and serve within 7 days of the date hereof written submissions, not exceeding 10 pages, addressing:
2.1 the orders sought in the draft minutes of order;
2.2 the order sought as to the costs of the trial and the Court’s power to make…
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- Smith v Champion [2009] ACTCA 7
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- [2009] ACTCA 7
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CaseChat Overview and Summary
The court was required to determine several legal issues. These included whether the trial judge had failed to recognise the appellant's financial contributions concerning the first property, and whether the appellant should have received the capital appreciation of that property. Further issues were whether the trial judge erred in failing to find that the parties' financial contributions were equal, and whether the trial judge had failed to consider the respondent's conduct in relation to the property, specifically their refusal to sell, sole occupation after the relationship ended, and failure to make mortgage payments when assessing financial contributions for the second property.
The court allowed the appeal in part, finding that the trial judge had erred in failing to recognise the appellant's financial contribution in relation to the first property. Consequently, the appellant was entitled to an additional sum of $16,000 for this contribution. However, all other issues raised on appeal were decided in favour of the respondent. The court made orders for the parties to file draft minutes of order and written submissions addressing the proposed orders, costs of the trial, and costs of the appeal.
Orders
Orders of the court
1. Each party has leave to file and serve within 7 days of the date hereof draft minutes of order reflecting the conclusions expressed in these reasons.
2. Each party has leave to file and serve within 7 days of the date hereof written submissions, not exceeding 10 pages, addressing:
2.1 the orders sought in the draft minutes of order;
2.2 the order sought as to the costs of the trial and the Court's power to make such an order; and
2.3 the order sought as to the costs of the appeal.
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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