Stacpoole v Jones

[2003] NSWCA 243

Reported Decision: (2003) DFC 95-279

Court of Appeal

CITATION:	Stacpoole v Jones [2003] NSWCA 243
HEARING DATE(S):	26 August 2003
JUDGMENT DATE:	26 August 2003
JUDGMENT OF:	Meagher JA at 17; Santow JA at 18; Tobias JA at 1
DECISION:	a) That the appeal be allowed; b) That orders 1 and 2 of Acting Master Berecry of 4 October 2002 be set aside.; c) That unless the parties agree on the current market value of the property hereinafter referred to within thirty days of this date, the appellant shall do all things necessary to request the President of the Real Estate Institute of New South Wales to nominate an independent registered valuer who will prepare a valuation of the current market value of the property known as and situated at 344 Lawrence Hargrave Drive, Scarborough, New South Wales (the property). The costs of the valuation shall be paid by the parties in the same proportion as their respective interests in the property.; d) That within sixty days of receipt by the appellant of the said valuation, the appellant shall pay to the respondent an amount equal to three twenty-fifths of the current market value of the property as so determined.; e) That forthwith and simultaneously upon payment by the appellant in accordance with order 4, the respondent shall do all things and sign all documents necessary to transfer all her interest in the property to the appellant.; f) That the respondent pay the appellant's costs of the appeal but to have a certificate under the Suitors Fund Act.; g) That there be no order for costs with respect to the proceedings before Acting Master Berecry.
CATCHWORDS:	FAMILY LAW - De facto relationship - Division of assets - Whether Master carried out s20 balancing test correctly - Whether an adjustment should be made - ND
LEGISLATION CITED:	Property (Relationships) Act 1984 Suitors Fund Act
PARTIES :	Barry Raymond Stacpoole Noelene Ann Jones
FILE NUMBER(S):	CA 41128/03
COUNSEL:	A - Mr M Kearney R - No appearance of or for the Respondent
SOLICITORS:	A - Birch Partners R - Vizzone Ruggero & Associates

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 2198/01
LOWER COURT JUDICIAL OFFICER :	Berecry AM

CA 41128/03

MEAGHER JA
SANTOW JA
TOBIAS JA

26 AUGUST 2003

BARRY RAYMOND STACPOOLE v NOELENE ANN JONES

Judgment

1 TOBIAS JA: This is an appeal from a decision of Acting Master Berecry of 4 October 2002, in which the Acting Master made orders pursuant to s 20 of the Property (Relationships) Act 1984 (the Act), the major one of which was that the appellant should pay to the respondent the sum of $86,000 pursuant to s 20 of that Act.

2 The parties commenced to live together in a de facto relationship in 1987. The relationship lasted for thirteen years and ended on 17 January 2001. At the time of the commencement of the relationship the parties had the following assets: the respondent had household furniture and chattels with an estimated value of $5000 and a personal injury claim in respect of injuries sustained in a motor vehicle accident in 1985 which in 1989 netted her the sum of $25,713.95; the appellant owned a block of land at Margaret River in Western Australia valued at $16,500, a house at 315 Lawrence Hargrave Drive, Clifton, with an estimated value of $45,000; household furniture with an estimated value of $1,000 and a motor vehicle with a value of $700.

3 At the termination of their relationship in January 2001 their assets comprised the following: as to the appellant, he still owned the Margaret River property which then had a value of $100,000 and a property at 344 Lawrence Hargrave Drive, Scarborough, with a value of $410,000. That property had been acquired in or about 1992 when the appellant had sold the Clifton property and had purchased the Scarborough property for the sum of $145,000, together with stamp duty of $3140.72. Of that total amount of approximately $148,000, all but $18,000-$20,000 had been contributed by the appellant. In recognition of the respondent’s financial contribution to the acquisition of that property, funded by the damages which she had received in respect of her 1985 motor vehicle accident, the Scarborough property was purchased as to twenty-two twenty-fifths in the name of the appellant and as to three twenty-fifths in the name of the respondent.

4 Further, there were some other minor assets at the time of termination, comprised of furniture and other chattels, and a small superannuation amount. I do not, however, consider that any of those items require any further consideration in terms of any possible adjustment between the parties pursuant to s 20 of the Act.

5 As to other forms of financial contribution by the parties the Acting Master found that the appellant had during the course of the relationship contributed a total amount of income just under $200,000, being $117,674 contributed between 1987 to 1994, $5060 in the financial year ending 30 June 1996, and a further $77,000 in the period 1996 to 2001. The Acting Master also found that over the course of the relationship the appellant’s father had contributed a total sum of $40,000 to his son, which he had used in payment of household expenses.

6 So far as the respondent was concerned, she contributed approximately $34,000 of her income, being some $27,802, contributed between 1987 and 1994, some $5,807 in the year ending 30 June 1996 and some $415 between 1996 and 2001. The small amount of income contributed by the respondent in the period 1996 to 2001 seems to have been due to two main factors. The first was the birth of the parties’ first child in 1995 and then the birth of a second child in 1997. The second was that the respondent, due to her second motor vehicle accident, had suffered injuries which made it difficult for her to undertake work and for that matter to undertake the more onerous household chores.

7 It is not surprising, therefore, that in these circumstances the Acting Master at [37] of his judgment found that the evidence established that the financial contributions to the relationship of the appellant had been significantly greater than those of the respondent.

8 So far as their respective non-financial contributions were concerned, the Acting Master in [38] of his judgment found that each had made a significant contribution as homemaker and carer. Notwithstanding that the evidence and the findings of the Acting Master clearly established that in terms of financial contributions to the acquisition and conservation of property, and to the general financial resources of the parties, the appellant had contributed significantly more than the respondent, he determined that there should be an adjustment in favour of the respondent and that that adjustment should involve the payment by the appellant to the respondent of the sum of $86,000. No indication was given by the Acting Master as to how he arrived at that sum.

9 It would seem that the basis upon which the Acting Master came to that conclusion, as he indicates in [40] and [41] of his judgment, was that he was impressed by the fact that the respondent contributed a substantial proportion of her second damages settlement, in the sum of approximately $36,000, to the relationship. In [41] he described that contribution as being substantial. It would seem to me, however, that although one could describe that contribution as substantial, it was significantly outweighed by the financial contributions made by the appellant. This is so not only in terms of the capital amounts contributed to the acquisition and conservation of property as a consequence of the ownership of the real estate which he possessed at the time the relationship commenced, but also in terms of the significantly greater income that he was able to generate and contribute to the relationship during the course of it. When taken with the $40,000 contributed by the appellant’s father, which is required to be taken into account by s 20(1)(a) of the Act, it is clear, as the Acting Master found, that the financial contributions of the appellant were significantly greater than those of the respondent. This notwithstanding, the Acting Master’s finding in [37] of his judgment appears to be inconsistent with his finding in [41], in which he seems to have given over-riding weight to the contribution of some $36,000 to $38,000 to the general household expenses of the parties made by the respondent out of the settlement money she received in respect of the second motor vehicle accident.

10 So far as the non-financial contributions of the parties are concerned, it is apparent that the Acting Master found that each of them made a significant contribution as homemakers and as carers and parents to the two children. In a number of passages in his judgment, the Acting Master was of the view that those contributions were, to all intents and purposes, of equal significance.

11 In those circumstances, it seems to me that the Acting Master erred in that he failed to carry out the proper balancing exercise which s 20 of the Act requires, having regard to the matters referred to in s 20(1)(a) and (b). In particular, it seems to me that, as there had been an equal contribution of the parties in terms of s 20(1)(b) and that there had been a significant imbalance in terms of financial contributions that favoured the appellant, no basis was made out by the respondent for an adjustment in her favour. Hence I consider that the Acting Master has, with respect, erred in finding otherwise.

12 The effect of the Acting Master’s error is that Order 1 made by him on 4 October must be set aside. It is therefore necessary and appropriate in the circumstances that we should re-exercise the discretion vested in the court by the Act. In doing so, and taking into account the matters to which I have already referred, in my opinion it is clear that the balancing exercise required by s 20 demonstrates that there was such a significant discrepancy between the financial contributions of both parties that it must follow that the respondent has not made out any case for an adjustment in her favour.

13 The appellant has cross-claimed, seeking an adjustment in his favour. I am of the opinion, however, that no such adjustment should be made. In these circumstances, both parties have failed to justify any adjustment in terms of s 20, so that it would be neither just nor equitable to make any such adjustment. However, s 19 of the Act requires the Court, as far as practicable, to make such orders as will finally determine the financial relationships between the parties to avoid any further proceedings between them. In these circumstances it seems appropriate, given that the Scarborough property is owned as to three twenty-fifths by the respondent and as to twenty-two twenty-fifths by the appellant, that an order should be made with respect to the parties’ interests in that property, in order to ensure that there is no further litigation between the parties relating to those interests.

14 The appellant’s primary case was that that three twenty-fifths should be transferred to him upon him paying to the respondent the sum of $50,000. I have already referred to the fact that the Scarborough property was valued at the time of the hearing at $410,000, but it seems to be common ground that that value would have increased since the time of that valuation to the present. It would be inappropriate, in my opinion, for the respondent to receive only $50,000, which is only $800 more than the value of her interest in that property of $49,200 at the time of the valuation made for the purpose of the hearing at first instance. In order to come to a more appropriate assessment, it seems to me that the property should be valued to ascertain its current market value and that the respondent should receive three twenty-fifths of this amount. I propose an order in those terms.

15 Before concluding, I should indicate that the respondent has not appeared before us today. I note that we were provided with affidavit evidence establishing that she was in fact served with the notice of appeal and that she was sent letters addressed to her address in, Scarborough enclosing the appeal books, the orange books, and all other material that has been filed by the appellant with this Court. We also received some oral evidence from the appellant that he spoke to the respondent a few days ago and reminded her of this hearing. Although at the time of that conversation she indicated that she intended to attend the hearing, she has not, and it has not been possible to contact her. In those circumstances this matter has proceeded ex parte.

16 I would therefore propose the following orders:

a) That the appeal be allowed

b) That orders 1 and 2 of Acting Master Berecry of 4 October 2002 be set aside.

c) That unless the parties agree on the current market value of the property hereinafter referred to within thirty days of this date, the appellant shall do all things necessary to request the President of the Real Estate Institute of New South Wales to nominate an independent registered valuer who will prepare a valuation of the current market value of the property known as and situated at 344 Lawrence Hargrave Drive, Scarborough, New South Wales (the property). The costs of the valuation shall be paid by the parties in the same proportion as their respective interests in the property.

d) That within sixty days of receipt by the appellant of the said valuation, the appellant shall pay to the respondent an amount equal to three twenty-fifths of the current market value of the property as so determined.

e) That forthwith and simultaneously upon payment by the appellant in accordance with order 4, the respondent shall do all things and sign all documents necessary to transfer all her interest in the property to the appellant.

f) That the respondent pay the appellant’s costs of the appeal but to have a certificate under the Suitors Fund Act.

g) That there be no order for costs with respect to the proceedings before Acting Master Berecry.

17 MEAGHER JA: I agree.

18 SANTOW JA: I agree.

19 MEAGHER JA: The orders of the Court, therefore, are the orders proposed by Justice Tobias.

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Last Modified: 09/05/2003