Vollmer v Hauber-Davidson

[2005] NSWCA 237

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Vollmer v Hauber-Davidson [2005]  NSWCA 237

FILE NUMBER(S):
40860 of 2004

HEARING DATE(S):               Determined on the papers

JUDGMENT DATE: 11/07/2005

PARTIES:
Gisella Vollmer (Claimant)
Guenter Hauber-Davidson (Opponent)

JUDGMENT OF:       Mason P Handley JA    

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):          SC 2637 of 2002

LOWER COURT JUDICIAL OFFICER:     Macready M

COUNSEL:
Determined on the papers

SOLICITORS:
Stuart Fowler & Partners (Claimant)
Watts McCray (Opponent)

CATCHWORDS:
DE FACTO RELATIONSHIPS - Property (Relationships) Act - costs

LEGISLATION CITED:
Property (Relationships) Act 1984

DECISION:
1. Leave to appeal granted.
2. Notice of appeal to be filed within 28 days.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40860 of 2004
SC 2637 of 2002

MASON P
HANDLEY JA

11 JULY 2005

GISELLA VOLLMER v GUENTER HAUBER-DAVIDSON

Judgment

1. THE COURT: This is a summons for leave to appeal from a costs order made by Macready M on 9 September 2004 following his decision on 24 August 2004 disposing of the claim and cross-claim of the parties under the Property (Relationships) Act 1984 (the Act). The Master ordered the defendant to pay the plaintiff’s costs of the proceedings and the defendant seeks leave to appeal from this order.

2. The parties filed and exchanged written submission in accordance with the Rules and have sensibly agreed to the summons being disposed of in chambers without oral argument.

3. They lived in a de facto relationship between April 1994 and January 2001, and had one child who was born on 24 March 1997.  The claimant also had a son from a prior marriage who is now 25. 

4. The financial and property transactions of the parties were complex but their major asset, and the focus of the proceedings, was their jointly owned home at 32 Parry Street Putney (the property) which at the date of the trial had an agreed value of $875,000.  This was subject to a mortgage for $135,000 leaving an estimated equity of $740,000.

5. The plaintiff moved out of the property in January 2002 and on 10 May that year commenced proceedings for an order adjusting the interests of the parties in their property.  His statement of claim relevantly sought orders which would have made him the sole owner of the property subject to the existing mortgage and a payment to the defendant of $47,000.  Prior to commencing proceedings he had on 28 March offered to pay the defendant $57,000 for her share in the property. 

6. The defendant’s cross-claim of 12 July 2002 sought orders which would have made her the sole owner of the property subject to the existing mortgage and a payment to the plaintiff of $200,000.  On 10 March 2004 the plaintiff made the defendant an offer of 20% of the net value of the property.  The proceedings were heard on 2 and 3 August 2004 and on the morning of the first day the defendant offered to settle for a payment of $250,000.  The offers,…