PRACTICE AND PROCEDURE - Domestic relationship — Application for adjustment of property interests – Application out of time – Whether leave to apply out of time must be sought and granted before substantive application for an adjustment order is commenced – Whether substantive application a nullity – Defendant originally consenting to orders that application for leave be heard and determined together with the trial of the substantive application – Whether orders should be varied - Discretionary considerations – Harris v Harris (1997) 22 Fam LR 263 not followed - Property Law Act 1958 Pt IX ss 279, 282, 284, 285, 287.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr J Evans
Webb Korfiatis Solicitors
For the Defendants
Mr J Santamaria QC with Mr G.L. Meehan
Kenna Teasdale Lawyers
HIS HONOUR:
This appeal by the first defendant from an order made by the Listing Master turns substantially on a question of interpretation of Part IX of the Property Law Act1958 (“the Act”), which sets out a regime for the adjustment of property interests as between unmarried “domestic partners” (as defined).
Under Part IX, and, in particular, under s 279 of the Act, a person who is or has been in a “domestic relationship” (as defined) with another person may apply to a court for an order for the adjustment of interests with respect to their property (hereafter referred to as an “adjustment order”). The court may make an adjustment order “that seems just and equitable to it” having regard to certain stated factors: s 285. However, s 282(1) provides in effect that if the domestic relationship has ended, an application for an adjustment order must be made within a period of two years after the ending of the relationship. Sub-section 282(2) provides that a court may grant leave to a domestic partner to apply for an adjustment order at any time after the end of that period if the court is satisfied that greater hardship would be caused to the partner applying if that leave were not granted than would be caused to the other partner if that leave were granted.[1]
[1]These provisions are set out verbatim later in these reasons.
The question of interpretation is whether, if an application for an adjustment order is not made within the two year period, it is essential that leave be sought and granted under s 282(2) before any application for an adjustment order is commenced. Or, on the other hand, may a court do what the Chief Justice (sitting in the Practice Court) actually did (by consent) some time ago in the present case, namely order, in…
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.
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AGLC
Booth v Ward [2007] VSC 364
Case
[2007] VSC 364
Decision Date
CaseChat Overview and Summary
The case of Booth v Ward involves an application by a former de facto partner, Booth, seeking an adjustment of property interests in a relationship with Ward, the respondent. Booth's application was filed beyond the statutory time limit, raising questions about the procedure and the validity of the application. The dispute was heard and determined in the Family Court of Australia. The central legal issue was whether Booth's application was a nullity because it was filed out of time, and whether leave to apply out of time must be sought and granted before the substantive application is commenced. Additionally, the court had to consider whether the orders, which originally allowed the application for leave to be heard and determined together with the trial of the substantive application, should be varied.
The court examined the statutory provisions of the Property Law Act 1958, specifically sections 279, 282, 284, 285, and 287, and also referenced the principles established in Harris v Harris (1997) 22 Fam LR 263. It concluded that the application was not a nullity and that the requirement for leave to apply out of time does not necessarily render the substantive application invalid. The court found that the original orders allowing the application for leave to be heard together with the substantive application should not be varied. The decision underscored the discretionary nature of the court's powers in such matters and the importance of considering the unique circumstances of each case.
The court exercised its discretion in a manner that diverged from the precedent set in Harris v Harris, emphasising that each case must be assessed on its own merits. The court found that the substantive application was not a nullity and that it was appropriate to proceed with the determination of the substantive issues. The court also highlighted the significance of the discretionary considerations in such cases, including the interests of justice and the fairness of the outcome. The final orders reflected the court's determination that the application could proceed, despite the procedural irregularity, and that the original orders regarding the timing of the application for leave and the substantive application should remain unchanged.