VG v OM - [2005] QCA 183

SUPREME COURT OF QUEENSLAND

CITATION:

VG v OM [2005] QCA 183

PARTIES:

VG
(applicant/respondent)
v
OM

(respondent/appellant)

FILE NO/S:

Appeal No 9558 of 2004
Appeal No 9899 of 2004

SC No 5072 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING
COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2005

JUDGES:

McMurdo P, Helman and Philippides JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. In Appeal No 9558 of 2004: Appeal dismissed with costs to be assessed

2. In Appeal No 9899 of 2004: Appeal dismissed with costs to be assessed

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – IN GENERAL – STATEMENT OF REASONS FOR DECISIONS – where trial judge made determination that the property of the parties should be divided as to 70% to the respondent and 30% to the appellant – where trial judge considered contributions of both parties to the joint property prior to and after separation and the increase in property value – whether trial judge failed to give adequate reasons for determination – whether trial judge gave proper weight to the evidence – whether trial judge properly exercised her discretion

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where trial judge made costs order under s 341 of Property Law Act 1974 (Qld) – where trial judge’s determination as to apportionment identical to that of case appraiser’s – whether trial judge failed to properly exercise her discretion

Property Law Act 1974 (Qld), Pt 19, s 341

Uniform Civil Procedure Rules 1999 (Qld), r 344

In the marriage of Wells (1977) 29 FLR 383, distinguished
In the marriage of Zappacosta [1976] 26 FLC 90-089, distinguished

Norbis v Norbis (1986) 161 CLR 513, cited

COUNSEL:

R Hamwood for the appellant

M Eliadis for the respondent

SOLICITORS:

Watts & Company for the appellant
Harrington Family Lawyers for the respondent

McMURDO P: I agree with Philippides J that, for the reasons she gives, the appeals should be dismissed with costs to be assessed.

HELMAN J: I agree with the orders proposed by Philippides J and with her reasons.

PHILIPPIDES J: This is an appeal from a decision given on 6 October 2004 in respect of the distribution of property following the termination of a de facto relationship. An application for a property adjustment order under Part 19 of the Property Law Act 1974 (Qld) (“PLA”) was brought by VG, the respondent before this Court. The other party to the relationship OM was the respondent at first instance and the present appellant.

At the commencement of the relationship the appellant was 46 years of age and the respondent was 43 years of age. The de facto relationship endured for nearly 10 years, commencing in January 1991 and ending in November 2001 (although they appear to have continued to reside in…

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 VG v OM

Details

AGLC: VG v OM [2005] QCA 183
Case: [2005] QCA 183
Decision Date: 3 June 2005

CaseChat Overview and Summary

In the case of VG v OM, the appellant, VG, contested the division of property between the parties following their separation. The matter was heard in the Supreme Court of Queensland, where the trial judge had already decided that the property should be divided in a 70/30 ratio in favour of the respondent, OM. VG argued that the trial judge had not provided adequate reasons for the division, had not given proper weight to the evidence, and had not exercised her discretion properly. VG also contested the costs order made by the trial judge, which was identical to the apportionment recommended by a case appraiser, arguing that the trial judge had failed to exercise her discretion properly in this regard.

The primary legal issues before the court were whether the trial judge had adequately provided reasons for the division of property, whether she had given proper weight to the evidence presented, and whether she had exercised her discretion properly. Additionally, the court had to consider whether the trial judge had properly exercised her discretion in making the costs order. The appellant contended that the trial judge had not sufficiently considered certain evidence, particularly in relation to her contributions to the property both before and after the separation. The respondent argued that the trial judge had considered all relevant evidence and had exercised her discretion appropriately.

In delivering the judgment, the court found that the trial judge had adequately provided reasons for the division of property, had given proper weight to the evidence, and had exercised her discretion properly. The court was satisfied that the trial judge had considered all relevant factors and had made a fair and reasonable division of the property. The court also found that the trial judge had properly exercised her discretion in making the costs order, as the apportionment recommended by the case appraiser was reasonable and the trial judge had considered the evidence in making her decision. Consequently, the court dismissed both appeals and ordered that costs be assessed in each case.

The final orders of the court were that the appeals brought by VG were dismissed with costs to be assessed in each case. This decision underscores the importance of trial judges providing adequate reasons for their decisions and exercising their discretion properly, while also recognising the role of case appraisers in providing expert advice on property valuation. The outcome in this case serves as a reminder to parties and practitioners alike of the standards expected in property division cases.

Orders

Orders of the court

1. In Appeal No 9558 of 2004: Appeal dismissed with costs to be assessed

2. In Appeal No 9899 of 2004: Appeal dismissed with costs to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	VG v OM [2005] QCA 183
PARTIES:	VG (applicant/respondent) v OM (respondent/appellant)
FILE NO/S:	Appeal No 9558 of 2004 Appeal No 9899 of 2004 SC No 5072 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	3 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2005
JUDGES:	McMurdo P, Helman and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. In Appeal No 9558 of 2004: Appeal dismissed with costs to be assessed 2. In Appeal No 9899 of 2004: Appeal dismissed with costs to be assessed
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – IN GENERAL – STATEMENT OF REASONS FOR DECISIONS – where trial judge made determination that the property of the parties should be divided as to 70% to the respondent and 30% to the appellant – where trial judge considered contributions of both parties to the joint property prior to and after separation and the increase in property value – whether trial judge failed to give adequate reasons for determination – whether trial judge gave proper weight to the evidence – whether trial judge properly exercised her discretion PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where trial judge made costs order under s 341 of Property Law Act 1974 (Qld) – where trial judge’s determination as to apportionment identical to that of case appraiser’s – whether trial judge failed to properly exercise her discretion Property Law Act 1974 (Qld), Pt 19, s 341 Uniform Civil Procedure Rules 1999 (Qld), r 344 In the marriage of Wells (1977) 29 FLR 383, distinguished In the marriage of Zappacosta [1976] 26 FLC 90-089, distinguished Norbis v Norbis (1986) 161 CLR 513, cited
COUNSEL:	R Hamwood for the appellant M Eliadis for the respondent
SOLICITORS:	Watts & Company for the appellant Harrington Family Lawyers for the respondent