Tyms v Williamson - [2010] NSWCA 138

New South Wales

Court of Appeal

CITATION: Tyms v Williamson [2010] NSWCA 138
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10 June 2010

JUDGMENT DATE:
9 July 2010

JUDGMENT OF: Beazley JA at 1; Handley AJA at 2; Davies J at 3

DECISION: (1) The appeal is allowed. (2) Judgment for the Plaintiff for $110,000 on 4 August 2009 set aside. (3) In lieu thereof, substitute, judgment for the Plaintiff for $91,000 with effect from 4 August 2009. (4) No order as to the costs in this Court. (5) Any variation of the cost orders below to be sought by Notice of Motion filed within 14 days of the publication of these reasons.

CATCHWORDS: FAMILY LAW AND CHILD WELFARE - de facto relations - adjustment of property interests - evaluation of contributions - balancing of financial and non-financial contributions by the parties - treatment of superannuation by the Trial Judge - sufficiency of reasons.

LEGISLATION CITED: Property (Relationships) Act 1984

CASES CITED: Baker v Towle [2008] NSWCA 73
Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360
Howlett v Neilson [2005] NSWCA 149
Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Trosse v Howard [2009] NSWCA 346
Williamson v Tyms [2009] NSWDC 348

PARTIES: Steffan Adrian Tyms (Appellant)
Aina Signe Maria Williamson (Respondent)

FILE NUMBER(S): CA 2009/298488

COUNSEL: Ms S Christie (Appellant)
G M Gould (Respondent)

SOLICITORS: O’Hearn & Bilinsky Lawyers (Appellant)
Cunningham & Adam Solicitors (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 24/2008

LOWER COURT JUDICIAL OFFICER: Sidis DCJ

LOWER COURT DATE OF DECISION: 4 August 2009

CA 2009/298488

BEAZLEY JA
HANDLEY AJA
DAVIES J
FRIDAY, 9 JULY 2010

TYMS V WILLIAMSON

Judgment

1 BEAZLEY JA: I agree with Davies J.

2 HANDLEY AJA: I agree with Davies J.

3 DAVIES J: The Appellant and the Respondent met in about 1997 and commenced a de-facto relationship in June/July 1999 when the Respondent and her young son Dylan moved into the Appellant’s house at 56 Florida Avenue, New Lambton.

4 The de-facto relationship came to an end in February 2006 when the Respondent and her son moved out of the property.

5 The Respondent commenced proceedings under the Property (Relationships) Act 1984 claiming the sum of $145,000 from the Appellant. The proceedings were heard by her Honour Judge Sidis in the District Court, and her Honour gave judgment on 4 August 2009. She entered a verdict and judgment for the Plaintiff in the sum of $110,000 and made costs orders against the Defendant which required the payment of indemnity costs for a portion of the proceedings: Williamson v Tyms [2009] NSWDC 348.

6 The Appellant appeals to this Court asking that the appeal be allowed and the claim by the Respondent be dismissed. Alternatively, the Appellant asks that the proceedings be remitted for hearing in accordance with…

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 Tyms v Williamson

Details

AGLC: Tyms v Williamson [2010] NSWCA 138
Case: [2010] NSWCA 138
Decision Date: 9 July 2010

CaseChat Overview and Summary

The appeal in *Tyms v Williamson* concerned an adjustment of property interests between parties in a de facto relationship. The primary dispute revolved around the evaluation of the parties' financial and non-financial contributions and how superannuation was treated by the Trial Judge, with the appellant arguing that the reasons provided were insufficient. The case was heard in the Court of Appeal.

The central legal issues before the Court of Appeal were whether the Trial Judge had adequately considered and balanced the financial and non-financial contributions of both parties, particularly in relation to the treatment of superannuation, and whether the reasons for the original judgment were sufficiently detailed to allow for proper appellate review.

The Court of Appeal allowed the appeal, finding that the Trial Judge's assessment of contributions and the resulting property adjustment were flawed. The Court determined that the original judgment for $110,000 in favour of the plaintiff was to be set aside. In its place, the Court substituted a judgment for the plaintiff in the sum of $91,000, with the same effective date. There were no orders as to costs in the Court of Appeal, and any variation of the costs orders made in the court below was to be sought by a Notice of Motion filed within 14 days of the publication of the reasons.

Orders

Orders of the court

(1) The appeal is allowed. (2) Judgment for the Plaintiff for $110,000 on 4 August 2009 set aside. (3) In lieu thereof, substitute, judgment for the Plaintiff for $91,000 with effect from 4 August 2009. (4) No order as to the costs in this Court. (5) Any variation of the cost orders below to be sought by Notice of Motion filed within 14 days of the publication of these reasons.

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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CITATION:	Tyms v Williamson [2010] NSWCA 138 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	10 June 2010
JUDGMENT DATE:	9 July 2010
JUDGMENT OF:	Beazley JA at 1; Handley AJA at 2; Davies J at 3
DECISION:	(1) The appeal is allowed. (2) Judgment for the Plaintiff for $110,000 on 4 August 2009 set aside. (3) In lieu thereof, substitute, judgment for the Plaintiff for $91,000 with effect from 4 August 2009. (4) No order as to the costs in this Court. (5) Any variation of the cost orders below to be sought by Notice of Motion filed within 14 days of the publication of these reasons.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - de facto relations - adjustment of property interests - evaluation of contributions - balancing of financial and non-financial contributions by the parties - treatment of superannuation by the Trial Judge - sufficiency of reasons.
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Baker v Towle [2008] NSWCA 73 Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360 Howlett v Neilson [2005] NSWCA 149 Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Trosse v Howard [2009] NSWCA 346 Williamson v Tyms [2009] NSWDC 348
PARTIES:	Steffan Adrian Tyms (Appellant) Aina Signe Maria Williamson (Respondent)
FILE NUMBER(S):	CA 2009/298488
COUNSEL:	Ms S Christie (Appellant) G M Gould (Respondent)
SOLICITORS:	O’Hearn & Bilinsky Lawyers (Appellant) Cunningham & Adam Solicitors (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	24/2008
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ
LOWER COURT DATE OF DECISION:	4 August 2009