Loibner v Owens [2006] NSWSC 410

Loibner v Owens [2006] NSWSC 410

The plaintiff was not entitled to a property adjustment because the evidence did not establish a domestic relationship of at least 2 years, and her financial and non-financial contributions, when assessed against the defendant's contributions, the increase in value caused by market forces, and her sole occupation of...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
11 May 2006
Procedural Posture
Proceedings by a Former De Facto Partner for Unequal Distribution of Proceeds of Sale of Jointly Owned Property And, Alternatively, Resulting Trust or Constructive Trust Relief / Judgment After Hearing
Outcome
Plaintiff not entitled to receive a property adjustment in her favour.
Legal Topics
['de Facto Relationship' 'property Adjustment' 'domestic Relationship Under the Property (relationships) Act 1984' 'substantial Contributions' 'equitable Accounting Between Co Owners' 'occupation Fee' 'mortgage Payments' 'costs']
['family Law' 'equity' 'property Law'] ['de Facto Relationship' 'property Adjustment' 'domestic Relationship Under the Property (relationships) Act 1984' 'substantial Contributions' 'equitable Accounting Between Co Owners' 'occupation Fee' 'mortgage Payments' 'costs']

Source-derived case record

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Procedural Posture

Proceedings by a Former De Facto Partner for Unequal Distribution of Proceeds of Sale of Jointly Owned Property And, Alternatively, Resulting Trust or Constructive Trust Relief / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the parties had lived together in a domestic relationship for not less than 2 years within s 17(1) of the Property (Relationships) Act 1984.' 'Whether the plaintiff made substantial contributions for which she would not otherwise be adequately compensated and failure to make an order would result in serious injustice within s 17(2)(b)(i) of the Property (Relationships) Act 1984.' "Whether post-separation mortgage payments and other outgoings should be offset by an occupation fee for the plaintiff's sole occupation of the property." 'Whether the plaintiff was entitled to receive an unequal adjustment of the proceeds of sale or trust relief in her favour.']

Ratio Decidendi

The plaintiff was not entitled to a property adjustment because the evidence did not establish a domestic relationship of at least 2 years, and her financial and non-financial contributions, when assessed against the defendant's contributions, the increase in value caused by market forces, and her sole occupation of the property, were not substantial within s 17(2)(b)(i) and did not make it unjust to refuse relief. Equitable accounting allowed her half of mortgage payments during cohabitation plus allowances for rates and purchase contribution, but post-separation claims were offset by the value of occupation.

Court Disposition

Plaintiff not entitled to receive a property adjustment in her favour.

Orders

  • ["One half of each party's costs to come out of the fund." "The plaintiff to pay the other half of the defendant's costs and bear half of her own costs." 'Either party to have liberty, at his or her own risk as to further costs, to argue costs before the judge or a Registrar.' "Matter stood over to the Registrar's...