MR G. RICHARDSON, SC: If the Court pleases, I appear with my learned friend, MR B.S. RICHARDS, on behalf of the applicant. (instructed by Turner Freeman)

MS E.A. COHEN: If the Court pleases, I appear with my learned friend, MR W. LLOYD, on behalf of the respondent. (instructed by Ellitt & Law)

GLEESON CJ: Yes, Mr Richardson.

MR RICHARDSON: Your Honours, the proceedings concern the application of section 20 of the De Facto Relationships Act of New South Wales which empowers a court to make such order, if any, as seems just and equitable, having regard to matters listed in subparagraphs (a) and (b) dealing with matters of:

financial and non-financial contributions made directly or indirectly…..to the acquisition, conservation or improvement of any of the property of the partners –

and:

the contributions…..of homemaker or parent –

in relation to the welfare of the family that may be constituted by the parties and children of either of them.

The proposition that section 20 needs to be applied as what might be broadly described in a contribution driven context ‑ ‑ ‑

GAUDRON J: Why not? Why do you not start, which one would have thought, from the position which the parties had agreed between themselves? I would have thought, in a situation in which the parties have agreed that the properties are to be held equally, that you start from that and it is only in that context that you bring the contributions to bear.

MR RICHARDSON: That may be the case and it is not against the thrust of our argument as to error in so far as we would suggest that the majority misdirected themselves in dealing with, in particular, the assessment of contribution arising from income of the parties during the course of the relationship. Much was made of the notion that the income was dealt with in a joint way or pooled way but that does not deprive from the prospect – from the fact that it was the income of each of them, contributed to the extent that they each could, and that there was a substantial imbalance which, by the terms of the section, would require recognition. The section itself does not invite the court to have regard to the assessment or quantification of contribution by reference to gender, nor does it, for example, ascribe greater weight to contribution by one party or the other or, for example, between direct contributions as opposed to financial contributions. It is a task of assessing weight and fact to the hands of the trial judge.

GAUDRON J: It seems to be…

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 Winders v Gazzard

Details

AGLC: Winders v Gazzard [1999] HCATrans 54
Case: [1999] HCATrans 54
Decision Date

CaseChat Overview and Summary

Winders v Gazzard concerned a dispute between the appellant, Winders, and the respondent, Gazzard, heard by the High Court of Australia. The case involved an appeal from a decision of the Supreme Court of Queensland.

The central legal issue before the High Court was whether the respondent, Gazzard, had acquired a prescriptive right to a right of way over the appellant's land. This required the court to consider the elements necessary to establish such a right, particularly in light of the nature of the use of the land and the relevant statutory provisions.

The High Court determined that the respondent had not established a prescriptive right of way. The court reasoned that the use of the land by the respondent had not been as of right, meaning it was not without the owner's permission. The evidence indicated that the use was permissive, and therefore, the necessary period of uninterrupted use as of right, as required by common law principles for prescription, had not been met. The court applied the established legal principles governing the acquisition of easements by prescription, emphasizing the need for the use to be open, continuous, and without challenge or permission from the landowner.

The appeal was allowed, and the orders of the Supreme Court of Queensland were set aside.

Orders