B and Ors & B [Limitation of Action]

The appeal concerned the enforcement of property orders made in 1986 under s 79 of the *Family Law Act 1975* (Cth) by the wife against the executors of her deceased husband's estate. The primary dispute revolved around whether the wife's application in 2003 to enforce these orders was time-barred by s 17 of the *Limitation Act 1969* (NSW). The executors also contended that subsequent consent orders made in 2003 were invalid as they were erroneously based on the original 1986 orders.

The court was required to determine several legal issues. Firstly, it had to consider the applicability of s 17 of the *Limitation Act 1969* (NSW) to the enforcement of the 1986 orders, particularly in light of the decision in *Dennehy (a bankrupt) v Reasonable Endeavours Pty Ltd*. Secondly, the court needed to ascertain the nature of the wife's entitlement arising from the 1986 orders, specifically whether these orders created an equitable interest in her favour, and if so, whether that interest constituted an equitable charge. Finally, the court had to assess the validity of the 2003 consent orders and the effect of any non-compliance with s 105 of the *Family Law Act 1975* (Cth).

The court reasoned that the 1986 orders, which stipulated the sale of the matrimonial home and a 50/50 division of the net proceeds, did not create an equitable interest in the wife's favour that would be subject to the *Limitation Act 1969* (NSW). Instead, the orders created a personal obligation on the husband to pay the wife her share of the proceeds upon sale. The court found that the wife's application in 2003 was an attempt to enforce a judgment debt, and therefore, the *Limitation Act 1969* (NSW) did not apply to such enforcement actions. The court also determined that the 2003 consent orders were validly made and did not suffer from the alleged defects raised by the executors.

The appeal was dismissed, and the orders made by the Judicial Registrar on 2 August 2004 were affirmed. The court ordered that the wife was entitled to her one-half share of the net proceeds of sale of the matrimonial home, amounting to $476,536.96.