Smith v Gould

[2014] VSCA 138

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Property
2. › De facto relationships
3. › Adjustment of property interests
4. › Former domestic partners
5. › Divisible pool of assets
6. › Identification and valuation
7. › Sub-pool approach versus global approach
8. › Whether trial judge erred in valuation of art sub-pool
9. › Property Law Act 1958 (Vic), s 285
1. Property
2. › De facto relationships
3. › Adjustment of property interests
4. › Contributions
5. › Financial and non-financial contributions
6. › Welfare contributions
7. › Erosion principle
8. › Whether initial contribution eroded by subsequent non-financial contributions
9. › Property Law Act 1958 (Vic), s 285(1)(a), (b)
1. Appeal
2. › Standard of appellate review
3. › Appeal by way of rehearing
4. › Credibility findings
5. › Whether appellate court should disturb trial judge's preference for evidence of one party
6. › Whether discretionary decision within generous ambit of reasonable disagreement
1. Evidence
2. › Credibility
3. › Witness found to have lied under oath
4. › Whether trial judge entitled to accept evidence of discredited witness on some matters
5. › Armory v Delamirie principle
6. › Whether adverse inferences should be drawn from failure to keep records

Quick Take

The Armory v Delamirie principle (that a wrongdoer who has deprived a party of evidence should have every presumption made against them) does not apply as a general rule in domestic property adjustment proceedings where one party has failed to keep proper records; the principle is confined to cases involving wrongful deprivation of goods or evidence. The 'erosion principle' is not a rule applicable to pre-cohabitation assets in long relationships and cannot be identified from the statute as a relevant distinct consideration; rather, the weight to be given to initial contributions is a matter for holistic assessment in all the circumstances.