Vollmer v Hauber Davidson

[2006] NSWCA 79

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Vollmer v Hauber Davidson [2006]  NSWCA 79

FILE NUMBER(S):
40860/04

HEARING DATE(S):            07/03/2006

DECISION DATE:     12/04/2006

PARTIES:
Applicant - Gisella Vollmer
Respondent - Guenter Hauber Davidson

JUDGMENT OF:      Mason P Ipp JA Hislop J   

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):        2637/02

LOWER COURT JUDICIAL OFFICER:     Macready M

COUNSEL:
Applicant - Mr D.J. Lloyd
Respondent - Mr R. Harper

SOLICITORS:
Applicant - Stuart Fowler & Partners
Respondent - Watts McCray

CATCHWORDS:
Adjustment of property interests
Costs.

LEGISLATION CITED:
Civil Procedure Act 2005 - s 98(1)
Conveyancing Act 1919 - s 66G
Property (Relationships) Act 1984 - s 20
Supreme Court Act 1970 - s 76
Supreme Court Rules - Pt 52A r 11
Uniform Civil Procedure Rules 2005 - Pt 42 r 1)

DECISION:
1. Appeal allowed
2. Each party to pay his or her costs of the proceedings before Master Macready and in this Court.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40860/04

MASON P
IPP JA
HISLOP J

12 April 2006

Gisella VOLLMER v Guenter HAUBER DAVIDSON

JUDGMENT

1. MASON P:  I agree with Hislop J.

2. IPP JA:  I agree with Hislop J.

   HISLOP J: 

   Introduction

3. The parties lived in a de facto relationship from April 1994 to January 2001. They had a daughter born on 24 March 1997. After separating they continued to reside under the same roof until the respondent left in January 2002.

4. In December 1997 the parties purchased a property at Putney for $440,000. The property was registered in their joint names in equal shares as tenants in common. It was subject to a bank mortgage for $160,000. The respondent provided additional funds for the purchase which he obtained from his relatives. Each party made payments in reduction of the mortgage. Although the parties had other assets, the property was their place of residence and their major asset.

5. On 10 May 2002 the respondent commenced proceedings for orders pursuant to the Property (Relationships) Act 1984 (‘the Act’).

6. The proceedings were heard by Master Macready (as he then was) on 2 and 3 August 2004. The agreed value of the property at the time of hearing was $875,000. It was subject to the mortgage upon which $135,000 remained outstanding.

7. The Master gave judgment on 24 August 2004. He held:

   …an appropriate adjustment of the parties’ interests would be achieved by an order for sale of the Putney property and a split between the plaintiff and the defendant of the net proceeds after discharge of the mortgage and expenses of 70 percent to the plaintiff and 30 percent to the defendant …

   The parties are to retain the property in their present possession…

8. On 9 September 2004 the Master heard argument as to costs. He concluded the appellant should pay the respondent’s costs of the proceedings.

9. The appellant appeals, by leave, from the costs order. There is no appeal from the substantive decision.

   Discussion

10. Section 20…