WALTER v JONG [1997] NSWCA 333

WALTER v JONG

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE, BEAZLEY and STEIN JJA 5 September 1997, 5 September 1997

[1997] NSWCA 333

Family Law — De Facto Relationships Act 1984 s20(1) — property interests — contributions — amended Notice of Appeal

Cole JA In this matter I have had the advantage of reading the draft of the judgment of Stein JA shortly to be delivered and I agree with it.

I would add only this, counsel for the appellant during discussion accepted that the respondent had entered the de facto relationship virtually with nothing save a small quantum of jewellery and left the relationship in the same condition.

The appellant on the other hand had entered the relationship with minor assets which included an equity in some land upon which the substantial asset which he ultimately held was constructed, namely a house.

Counsel also accepted that at the termination of the de facto relationship the appellant had assets in the order of $115,000 comprising principally the house and, in addition, a superannuation entitlement in the order of $50,000 so that his assets were in the order of $160,000 to $170,000.

It was also accepted by counsel for the appellant that the respondent had made a contribution towards the house which was in the order of $35,000. It is against that background and consistently with the approach adopted by this court in Evans v Marmont (Unreported, 1 July 1997), that the question of whether the exercise of the Master's discretion has miscarried must be considered.

The Master's award of $65,000 in my view is towards the top, if not at the top, of the permissible discretionary range. Nonetheless in my view it falls within that range. In those circumstances I would agree with the orders proposed by Stein JA that the appeal be dismissed with costs.

Beazley JA I agree with the orders proposed by Stein JA and with his reasons which I have had the opportunity to see in draft and also with the comments and reasons of Cole JA.

Stein JA This appeal concerns a challenge to an order made in the Equity Division by Master Macready. The order was made under s20(1) of the De Facto Relationships Act 1984 (the Act). The Master ordered that the defendant/appellant, Manfred Fritz Willie Walter, pay to the plaintiff/respondent, Ilse De Jong, the sum of $65,000.

At the hearing before the Master it was common ground that there existed between the parties a relationship under the Act between November 1981 and February 1985 and from 24 August 1986 until a final separation in August 1992. This is made abundantly clear by the pleadings, although it needs to be mentioned that there was a clear typographic error in page 1 of the Statement of Claim. Para2 referred to 1984 but the uncontested evidence of both parties was that the year was 1985.

At the commencement of the hearing the appellant asked for leave to amend the Notice of Appeal by adding the following ground:

2 UNREPORTED JUDGMENTS

The Master erred in law by taking into consideration the length of period of cohabitation prior to August, 1986 in determining what was just and equitable.

Leave to amend was refused for reasons then given by the court.

The balance of the Notice of Appeal maintains that the Master was in error in holding that an appropriate adjustment of the parties' property interests was the sum of $65,000 to be paid by the appellant to the respondent. The error is said to arise out of three circumstances:

1. that the Master erred in holding that the respondent had made some contribution to the appellant's severance pay, long service leave and superannuation;

2. that the Master erred in failing to take account of the appellant's income contributions as greatly outweighing those of the respondent;

and

3. that the Master erred in failing to hold that whatever contributions the respondent made were satisfied by the benefits she received during and upon the termination of the relationship.

During the course of the hearing counsel for the appellant Mr P Hallen did not press the last mentioned ground. He did not submit that the respondent should receive no adjustment. Indeed, in answer to an inquiry from the bench he suggested that $25,000 would be a just and equitable adjustment.

The grounds of appeal attack the discretionary decision-making of the Master.

The High Court has provided guidance for appellate courts in approaching discretionary decisions by primary decision-makers. In Singer v Berghouse (1994) 181 CLR 200 at 212 Mason CJ, Deane and McHugh JJ endorsed the view of Kirby P in Golosky v Golosky (Unreported, NSW Court of Appeal, 5 October 1993 at p13-p14). Their Honours said:

Kirby P, by contrast, has held that the principles that govern appellate review of discretionary decisions should apply. In our view, this is the correct approach. In this respect we should express our agreement with the following comments of his Honour in Golosky v Golosky:

"Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged."

See also Cole JA in Green v Robinson (1985) 36 NSWLR 96 at 112-113.

Turning to the contributions to superannuation, severance pay and long service leave, the Master dealt with the issues at length and in some detail. He concluded that the respondent had made direct and indirect contributions. His approach was consistent with the decision of this court in Green v Robinson and has not been shown to have exceeded a proper exercise of discretion.

As to the disparity of the respective incomes of the parties, it appears that the Master did consider this matter, see for example AB115P v and 117D-F.

Turning to the third complaint, again the Master considered any off-setting of contributions, see for example AB118C-D. In any event, this ground is really a complaint about the manner in which the Master exercised his discretion.

Examining the evidence, and the Master's reasons, I am unable to conclude that the exercise of discretion miscarried.

URJ WALTER v JONG (Stein JA) 3

It seems to me that the complaint of the appellant is really that the Master failed to properly balance the respective contributions of the parties as required by s20(1) of the Act. The thrust of Mr Hallen's submission is that the decision of the Master is so obviously unjust that it could not amount to a just and equitable balancing of the contributions. I cannot agree that the adjustment of the interests of the parties made by the Master was not within the discretion which s20(1) of the Act required him to exercise. It is not a question of whether I, or another tribunal, would have come to a different conclusion.

Ladd one further comment. The appellant submits that the Master failed to take into account his contribution of providing free accommodation for the respondent. It is not apparent to me that the Master did not take this fact into account, although it is far from self-evident that it is a contribution envisaged under s20(1) of the Act. In any event, it does not appear that the fate of the appeal rests on this point.

I would propose that the appeal be dismissed with costs.

The order of the court will be that the appeal is dismissed with costs. Counsel for the Appellant: Mr P Hallen

Solicitors for the Appellant: Wood Roberts, Mayfield NSW

Counsel for the Respondent: Mr M Errington

Solicitors for the Respondent: Baker Love, Newcastle NSW