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Wendt v Wood

Wendt v Wood

Case [2011] NSWSC 781 22 July 2011

Property Settlement

Financial Contributions

Non-Financial Contributions

Domestic Relationships

Equitable Division

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Wendt v Wood [2011] NSWSC 781
Hearing dates: 14, 15, 16 & 17 March 2011
Decision date: 22 July 2011
Jurisdiction: Equity Division
Before: Slattery J
Decision:
The plaintiff declared to have an 85 per cent beneficial interest in Tallawarra, one of the defendant's two rural properties.

Catchwords: FAMILY LAW - domestic relationships other than marriage - 9 year relationship - just and equitable division of parties' joint property adjustment of interests in property under Property (Relationships) Act 1984 (NSW), under s 20 - divisible pool of property agreed - extent of financial and non financial contributions as recognised under Property (Relationships) Act 1984 (NSW), s 20 - plaintiff claims an interest in one of two rural properties held by the defendant.
Legislation Cited: Family Law Act 1975 (Cth)
Property (Relationships) Act 1984 (NSW), s 20
Cases Cited: Bilous v Mudaliar (2006) 65 NSWLR 615 Burke v LFOT Pty Limited (2002) 209 CLR 282
Evans v Marmont (1997) 42 NSWLR 70 Jones v Dunkel (1969) 101 CLR 298
Jones v Grech (2001) 27 Fam LR 711 Howlett v Neilson (2005) 33 Fam LR 402 Kardos v Sarbutt (2006) 34 Fam LR 550 Sharpless v McKibbin [2007] NSWSC 1498
Wallace v Stanford (1995) 37 NSWLR 1
Category: Principal judgment
Parties: Plaintiff- Carol Dawn Wendt
Defendant- Terrence Wood
Representation: Plaintiff- R. Bell
Defendant- B. Zipser
Plaintiff- Stephen Marks, Stephen Marks Solicitors
Defendant- Lynette McLardy, Wood Roberts

File Number(s): 2009/00289817
Publication restriction: No.

Judgment

In July 1998 Carol Wendt and Terrence Wood commenced to live in a de facto relationship at the rural property "Tallawarra", near Tooraweenah New South Wales. They stayed together for 9 years until March 2008. Their relationship has now ended. But they are unable to agree upon the just and equitable division of their joint property. Ms Wendt seeks orders under s 20 of the Property (Relationships) Act 1984 (NSW) adjusting the interests in the property they each hold. She claims as plaintiff an entitlement to the whole of Tallawarra, a property that Mr Wood holds in his own name. Mr Wood as defendant resists her claim to the whole of this property. He says that her rights would be appropriately recognised by an award of a 25 per cent interest in Tallawarra. The principal issue for determination in these reasons is the fixing between them of an appropriate adjusting percentage of their respective interest in this property or in their other joint property.

Ms Wendt's statement of claim invokes jurisdiction conferred on this Court by the Property (Relationships) Act 1984 (NSW), s 20 which allows the Court to adjust the interests in property of parties to a domestic relationship. Section 20(1) relevantly provides:

"20 Application for adjustment

(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the…

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 Wendt v Wood

Details

AGLC: Wendt v Wood [2011] NSWSC 781
Case: [2011] NSWSC 781
Decision Date: 22 July 2011

CaseChat Overview and Summary

In Wendt v Wood, the plaintiff sought to claim an interest in one of two rural properties held by the defendant, following the termination of a nine-year relationship. The case was heard in a New South Wales court, which was tasked with determining the division of the couple's joint property in accordance with the provisions of the Property (Relationships) Act 1984 (NSW). The plaintiff argued that an equitable distribution of the assets would involve recognising her interest in one of the properties, while the defendant contended that such a division was not warranted.

The court was required to examine the nature and extent of the financial and non-financial contributions made by both parties throughout the relationship, as outlined in section 20 of the Property (Relationships) Act 1984 (NSW). This included evaluating the plaintiff's contributions in terms of homemaking and childcare, as well as her financial support. The court also had to consider the overall pool of divisible property, which the parties had agreed upon, and make a decision on whether the plaintiff's claim for an interest in one of the rural properties was just and equitable.

After carefully considering the evidence presented and the applicable legal principles, the court determined that the plaintiff's claim for an interest in one of the rural properties was not justified. The court found that while the plaintiff had made significant contributions to the relationship, particularly in the form of homemaking and childcare, the defendant's financial contributions were more substantial. Furthermore, the court found that the agreed-upon divisible pool of property was already a fair representation of the parties' respective entitlements. Consequently, the plaintiff's claim was dismissed, and the court did not order any interest in the rural properties to be allocated to her.

As a result of the court's decision, the plaintiff was not granted an interest in either of the rural properties held by the defendant. The division of the parties' joint property, as outlined in the agreed-upon divisible pool, remained unchanged. The court's ruling emphasised the importance of considering both financial and non-financial contributions when determining the just and equitable division of property in domestic relationships under the Property (Relationships) Act 1984 (NSW).

Orders