Bau & Algren

In *Bau & Algren*, Middleton J of the Federal Court of Australia considered an application for leave to proceed with a property adjustment claim out of time. The wife sought this leave, asserting hardship if it were not granted and a prima facie case for success in her substantive claim. The husband opposed the application, arguing, among other things, that the wife had not provided sufficient evidence of hardship and that she had proprietary and/or equitable rights she could pursue in a separate jurisdiction.

The central legal issues before the court were whether hardship would be caused to the wife if leave were not granted, and whether the court should exercise its discretion to grant leave. In determining the latter, the court was required to consider several factors, including whether the wife had a prima facie case or a real probability of success, the likely costs of litigation compared to the potential award, the length and reasons for any delay in bringing the claim, the prejudice to the respondent caused by the delay, a brief assessment of the probable outcome of the substantive claim, whether the wife had taken all reasonable steps to pursue her claim, and whether there was any evidence suggesting the wife might abandon her case.

Middleton J applied the principles established in *Sharp & Sharp* [2011] FamCAFC 150, which require the applicant to demonstrate a "prima facie claim worth pursuing or a real probability of success." The wife's affidavit provided evidence that she was the major contributor to the former matrimonial home and had continued to meet some mortgage payments after separation, a proposition seemingly supported by the husband's own affidavit. The court also noted the High Court's decision in *Stanford v Stanford* [2012] HCA 52, which underscored that a property adjustment order can only be made if the court is satisfied it would be just and equitable to do so, thereby highlighting the jurisdictional prerequisite for such orders. The court found that the respondent's argument regarding alternative avenues for the wife was not the correct test for determining hardship in this context.