Burgess v. King [2005] NSWCA 396

Burgess v. King [2005] NSWCA 396

The primary judge erred by not addressing the real question whether, because the appellant contributed $57,300 at about the commencement of a 13-year relationship and thereby helped preserve the Diggers Avenue property, it was just and equitable for him to share in the property's capital increase apart from renovation value. That error was material, but the appellant's award should be increased by only $50,000 because the respondent's greater income, homemaker contributions and provision of accommodation also contributed to the appellant's acquisition and capital gain in the Wharf Road unit. The indemnity costs order was not justified, although the appellant should pay the respondent's...

Jurisdiction
Australia
Judgment Date
18 November 2005
Procedural Posture
Appeal in De Facto Relationship Property Adjustment Proceedings Under the Property (relationships) Act 1984 / Appeal From Orders of Young CJ in Eq in the Supreme Court Equity Division
Outcome
Appeal allowed; orders below varied to increase the amount payable by the respondent to the appellant from $65,000.00 to $115,000.00 and to alter costs.
Legal Topics
['de Facto Relationships' 'adjustment of Property Interests' 'financial and Non Financial Contributions' 'capital Appreciation of Property' 'indemnity Costs' "suitors' Fund Certificate"]
['family Law' 'property Relationships' 'costs'] ['de Facto Relationships' 'adjustment of Property Interests' 'financial and Non Financial Contributions' 'capital Appreciation of Property' 'indemnity Costs' "suitors' Fund Certificate"]

Case Brief

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Procedural Posture

Appeal in De Facto Relationship Property Adjustment Proceedings Under the Property (relationships) Act 1984 / Appeal From Orders of Young CJ in Eq in the Supreme Court Equity Division

Legal Issues

  1. 1 ['Whether the primary judge erred by failing to consider whether the appellant should receive some benefit from the capital appreciation of the Diggers Avenue property because his contributions helped the respondent keep the property.' 'Whether the amount ordered in favour of the appellant was just and equitable under s.20 of the Property (Relationships) Act 1984.' 'Whether the costs order against the appellant at first instance should have been made on an indemnity basis.']

Ratio Decidendi

The primary judge erred by not addressing the real question whether, because the appellant contributed $57,300 at about the commencement of a 13-year relationship and thereby helped preserve the Diggers Avenue property, it was just and equitable for him to share in the property's capital increase apart from renovation value. That error was material, but the appellant's award should be increased by only $50,000 because the respondent's greater income, homemaker contributions and provision of accommodation also contributed to the appellant's acquisition and capital gain in the Wharf Road unit. The indemnity costs order was not justified, although the appellant should pay the respondent's...

Court Disposition

Appeal allowed; orders below varied to increase the amount payable by the respondent to the appellant from $65,000.00 to $115,000.00 and to alter costs.

Orders

  • ['Appeal allowed.' 'Orders below varied by substituting for the figure of $65,000.00 the figure of $115,000.00.' "Appellant to pay the respondent's costs of the proceedings at first instance on a party and party basis." "Respondent to pay the appellant's costs of the appeal, and to have a certificate under the...