Cooper v Mulcahy Mulcahy v Cooper [2013] NSWCA 160

Cooper v Mulcahy Mulcahy v Cooper [2013] NSWCA 160

The primary judge erred in adding $300,000 to the asset pool; only $100,000 should have been added back. Except for the 2007 assault, all other damages claims for assault and battery were statute barred, as the respondent was not under a disability as defined by the Limitation Act; damages for economic loss and out-of-pocket expenses were not properly supported by evidence and aggravated damages were not justified. On property adjustment, the trial judge's refusal to order immediate payment was not in error.

Jurisdiction
Australia
Judgment Date
14 June 2013
Procedural Posture
Appeal and Cross Appeal / Judgment of the Court of Appeal (nsw)
Outcome
Appeal allowed; cross-appeal dismissed; orders varied.
Legal Topics
['property Adjustment Under Domestic Relationships Legislation' 'damages for Assault and Battery' 'limitation of Actions' 'assessment of Damages' 'aggravated Damages' 'asset Division on Relationship Breakdown']
['family Law' 'tort Law' 'civil Procedure'] ['property Adjustment Under Domestic Relationships Legislation' 'damages for Assault and Battery' 'limitation of Actions' 'assessment of Damages' 'aggravated Damages' 'asset Division on Relationship Breakdown']

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Procedural Posture

Appeal and Cross Appeal / Judgment of the Court of Appeal (nsw)

Legal Issues

  1. 1 ["Whether $300,000 should have been 'added back' into the asset pool for property adjustment" 'Whether certain damages claims for assault and battery were statute barred by limitation legislation' 'Whether the respondent was under a disability suspending the limitation period under s52 Limitation Act 1969' 'Proper assessment of damages for assaults and batteries within domestic relationship' 'Appropriateness of aggravated damages' 'Validity of the damages awarded for past and future economic loss and out-of-pocket expenses' 'Appropriateness of refusing an order for immediate payment of property entitlement']

Ratio Decidendi

The primary judge erred in adding $300,000 to the asset pool; only $100,000 should have been added back. Except for the 2007 assault, all other damages claims for assault and battery were statute barred, as the respondent was not under a disability as defined by the Limitation Act; damages for economic loss and out-of-pocket expenses were not properly supported by evidence and aggravated damages were not justified. On property adjustment, the trial judge's refusal to order immediate payment was not in error.

Court Disposition

Appeal allowed; cross-appeal dismissed; orders varied.

Orders

  • ['A declaration that the pool of assets for distribution is $1,405,782.' "Each of the respondent's claims for damages for assault/battery as found by the primary judge is statute barred except for the 2007 assault." 'Judgment in favour of the respondent on her cross-claim quashed.' 'Judgment entered for the...