AG v MJG - [2011] QDC 186

[2011] QDC 186

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1838 of 2010

AG	Applicant
and
MJG	Respondent

BRISBANE

..DATE 10/08/2011

ORDER

CATCHWORDS
Property Law Act 1974 s 38, s 341
District Court of Queensland Act 1967 s 129
Uniform Civil Procedure Rules r 489, r 490(1)(b), r 665(3), r 904, r 926

Application proposed to be dealt with without an oral hearing - respondent did not appear or file any material, although served - court declines to deal with application so far as it sought the respondent be punished for contempt of orders regarding maintenance and sale of the parties' town house - the order did not contain the r 665 notice - the application did not sufficiently clearly identify the contempt - existing orders changed to facilitate sale - applicant appointed trustee for sale - costs awarded to applicant
HIS HONOUR: This is an application proposed to be heard without an oral hearing pursuant to Rule 489. I'll ask that the name of the respondent, who's been given notice the court will deal with the matter today, be called outside the court, in case he has turned up.

BAILIFF: No appearance, your Honour.

HIS HONOUR: Thank you. There is no appearance for the respondent. He has been served with the application, according to the affidavit of Mr de Courcey, filed on the 5th of August 2011, and was served at Aitkenvale in the Townsville area on the 28th of July 2011 in the afternoon. It's perhaps unsurprising that he's not here.

The applicant, now resides in another State with the son of the parties, who were formerly in a de facto relationship. Her circumstances include ones of financial stringency, which is put forward as justification for an oral hearing being avoided.

The respondent has done nothing in response to the application and the particular endorsement on it which invites him to take steps if he wishes to contend there ought to be an oral hearing or to put anything before the court.

It's appropriate in the circumstances for the court to do what it can to deal with the application on the basis proposed.

It is a most unusual one in including, in paragraph 2, an application pursuant to section 129 of the District Court of Queensland Act 1967 and "Rule 929" that the respondent be punished for contempt constituted by his failure to comply with orders of the court made on 7 February 2011. The relevant order of Judge Jones is document 9 on the court file.

Inquiries to date have not produced any answer to my inquiring whether the respondent played any part in events leading up to his Honour's order. The endorsement "order as per draft initialled by his Honour and placed with the papers" on the court's order file does not, as such endorsements ordinarily would, indicate whether there were any and, if so, what, appearances. Nor does the order do that. It was made in the context of the underlying originating application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AG v MJG

Details

AGLC: AG v MJG [2011] QDC 186
Case: [2011] QDC 186
Decision Date: 10/08/2011

CaseChat Overview and Summary

In the matter of AG v MJG, the applicant sought to deal with an application without an oral hearing as the respondent had failed to appear or file any material despite being served. The court declined to address the application's request for the respondent to be punished for contempt of orders regarding maintenance and sale of the parties' town house. The court found that the order did not include the notice required under rule 665, and the application did not clearly identify the contempt. The existing orders were altered to facilitate the sale of the property, and the applicant was appointed as the trustee for the sale. Costs were awarded to the applicant.

The legal issues before the court were whether the application could be dealt with without an oral hearing, whether the application sufficiently identified the contempt, and whether the existing orders should be modified to facilitate the sale of the property. The court found that the application could not be dealt with without an oral hearing as the respondent had failed to appear or file any material. The court also found that the application did not sufficiently identify the contempt, as it did not include the required notice under rule 665. The court modified the existing orders to facilitate the sale of the property and appointed the applicant as the trustee for the sale. The court awarded costs to the applicant.

Orders