W v D

Case [2012] SASCFC 142

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

W v D

[2012] SASCFC 142

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Anderson and The Honourable Justice David)

21 December 2012

REAL PROPERTY - GENERAL PRINCIPLES - INCIDENTS OF ESTATES AND INTERESTS IN LAND - JOINT TENANCY AND TENANTS IN COMMON - GENERALLY

Appeal against orders made for the division of the interests of the parties in land as tenants in common and for the accounting between them of their expenditure on the land and the benefits they received from it.

The appellant complains that: (1) the Judge erred in deducting the occupation fee from the appellant’s capital share in the proceeds of the sale – (2) the Judge wrongly failed to give credit to the appellant for depositing his tax refunds into the joint bank account during cohabitation – (3) the Judge made no allowance for the appellant’s physical work in maintaining and repairing the property – (4) the Judge failed to discount the agistment rent to make allowance for drought in the region in that period – (5) the Judge did not reduce the occupation fee to take into account the storage of personal items which the respondent had left in the house.

The cross-appellant complains that: (1) the Judge was wrong to calculate the mortgage payments on the basis of proportion of payments into the joint bank account – (2) the Judge’s calculation of the payments made to the mortgage after separation proceeded on a mistaken assumption.

Held: appeal allowed – parties are entitled to share in the proceeds of sale in proportion to their contributions subject to a deduction against the appellant for redrawing on the loan.  The occupation fee was properly offset against the appellant's claim for contribution to the mortgage instalments and other recurrent charges on the land paid by him but was not chargeable against the appellant's proportion of the capital value of the land.

Domestic Partners Property Act 1996 (SA) s 9(3); De Facto Relationships Act 1996 (SA), referred to.
Forgeard v Shanahan (1994) 35 NSWLR 206; Leigh v Dickeson (1884) 15 QBD 60, discussed.
Baumgartner v Baumgartner (1987) 164 CLR 137; Muschinski v Dodds (1985) 160 CLR 583; Scapinello v Scapinello [1968] SASR 316; Paroz v Paroz [2010] QSC 203; Luke v Luke (1936) 36 SR(NSW) 310; Ford v Lord Grey (1703) 91 ER 253; Teasdale v Saunderson (1864) 33 Beav 534; Williams v Williams (1899) 68 LJ(Ch) 528; Swan v Swan (1820) 8 Price 518; Callow v Rupchev [2009] NSWCA 148, considered.

W v D
[2012] SASCFC 142

Full Court:  Kourakis CJ, Anderson and David JJ

  1. KOURAKIS CJ:   This is an appeal against orders made for the division of the interests of the parties in land as tenants in common and for the accounting between them of their expenditure on the land and the benefits they received from it.

  2. The appellant, W, and the respondent, D, first met in…

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W v D [2012] SASCFC 142
Case
[2012] SASCFC 142
Decision Date

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Anderson and David JJ, considered a dispute between co-owners of a property, W and D. The central issue concerned the calculation of an occupation fee payable by one co-owner to the other, and how this fee, along with other financial contributions and claims, should be accounted for upon the sale of the property.

The court was required to determine whether a discount should be applied to the market rent when calculating the occupation fee payable by the absent co-owner. Furthermore, the court had to consider how the net proceeds of the sale of the property should be distributed, taking into account the occupation fee and any claims for contributions towards joint liabilities.

The Chief Justice reasoned that no discount should be applied to the market rent in calculating the occupation fee. The occupation fee was to reflect the absent co-owner's proportionate interest in the land. The court concluded that the occupation fee charged against W's interest significantly exceeded W's claims for contributions towards joint liabilities. Consequently, the appeal was allowed, and the parties were to be heard on the specific orders to be made. Anderson and David JJ agreed with the Chief Justice's reasons and the allowance of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, in my view there should be no discount of the market rent in calculating the occupation fee. The occupation fee should bear the same proportion to the market rent as the absent co-owner’s proportionate interest in the land. Conclusion My conclusion that D is not entitled to have the excess of the occupation fee charged against W’s interest means that parties’ complaints about many of the items in contention have no effect on the final result. On any view the occupation fee far exceeds W’s claims for a contribution to his payments of their joint liabilities arising out of the ownership of the farmlet. The parties are entitled to share in the proceeds of sale in proportion to their contributions subject only to a deduction against W for Item 14 in the table. The appeal should be allowed. I would hear the parties as to the orders which should be made. ANDERSON J: I agree that the appeal should be allowed for the reasons given by Kourakis CJ. DAVID J: I agree that the appeal should be allowed. I agree with the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

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