Agnew v Secretary Department of Social Security

[1999] FCA 837

FEDERAL COURT OF AUSTRALIA

Agnew v Secretary Department of Social Security [1999] FCA 837

SOCIAL SECURITY – constructive trust – findings of facts – consequences of those findings – intention of the parties – value of disposition

PARTNERSHIP – terms of dissolution – existence and nature of partnership debt – amount of debt owing by claimants

Social Security Act1991 (Cth) s 11(1) s 1123, s 1124,

Kintominas v Secretary, Department of Social Security (1991) 23 ALD 572 referred to
Kidner v Secretary, Department of Social Security (1993) 31 ALD 63 referred to
Giumelli v Giumelli (1999) 161 ALR 473 followed
Muschinski v Dodds (1985) 160 CLR 583 applied
Baumgartner v Baumgartner (1987) 164 CLR 137 applied

DEAN HOWARD AGNEW AND ROSEMARY RUTH AGNEW v SECRETARY, DEPARTMENT OF SOCIAL SECURITY

NO SG 105 OF 1998

O’LOUGHLIN J
23 JUNE 1999
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 105 OF 1998

BETWEEN:

DEAN HOWARD AGNEW
First Applicant

ROSEMARY RUTH AGNEW
Second Applicant

AND:

SECRETARY, DEPARTMENT OF SOCIAL SECURITY
Respondent

JUDGE:

O’LOUGHLIN J

DATE OF ORDER:

23 JUNE 1999

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The decision of the Administrative Appeals Tribunal be set aside.

2.The matter be remitted to that Tribunal for further consideration in terms consistent with these reasons.

3.The respondent pay the costs of the applicants which costs are to be taxed in default of agreement.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 105 OF 1998

BETWEEN:

DEAN HOWARD AGNEW
First Applicant

ROSEMARY RUTH AGNEW
Second Applicant

AND:

SECRETARY, DEPARTMENT OF SOCIAL SECURITY
Respondent

JUDGE:	O’LOUGHLIN J
DATE:	23 JUNE 1999
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicants in these proceedings are Dean Howard Agnew and his wife, Rosemary Ruth Agnew.  The issue that has brought this matter before the Court is whether they, or either of them, are entitled to an age pension.  The relevant facts are not in dispute and what follows is a summary that has been extracted from a statement of agreed facts.

2. Each of them lodged a claim for an age pension with the Department of Social Security (“the respondent”) on 23 May 1996.  However, both claims were rejected by a delegate of the respondent on 6 September of that year.  The basis for the rejection was said to be that the assets of Mr and Mrs Agnew exceeded the allowable maximum.

3. On 17 September 1996, Mr and Mrs Agnew lodged an appeal against the rejection of their applications.  The initial decision was reviewed but it was confirmed on 11 October and again on 16 October 1996.

4. On 6 January 1997, Mr and Mrs Agnew appealed to the Social Security Appeals Tribunal.  Again they were unsuccessful.  On 13 March 1997, that Tribunal affirmed the earlier decision.  On 9 April they appealed to the Administrative Appeals Tribunal (“the Tribunal”) but their appeal was dismissed on 8 July 1998.…