Butler v Barker
[2007] VSC 508
•4 December 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 7840 of 2007
| ANDREW BUTLER | Plaintiff |
| v | |
| MARCIA BARKER | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 3 and 4 DECEMBER 2007 | |
DATE OF JUDGMENT: | 4 DECEMBER 2007 | |
CASE MAY BE CITED AS: | BUTLER v BARKER | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 508 | |
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PROPERTY – De facto relationship – Separation of parties – Application for extension of time to bring an application for adjustment interest in land – Delay – Property Law Act 1958, s.282.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P D Sweeney | Lander & Rogers |
| For the Defendant | Mr G Devries | J A Middlemis |
HIS HONOUR:
The parties to this proceeding were once in a de facto relationship. They are now separated. For the purposes of the present application, but not otherwise, it is conceded by the defendant that I should take the date of separation as December 2004.
The plaintiff issued the present proceedings in August 2007. By his statement of claim, he alleges that the de facto relationship commenced in 1994 or thereabouts. At that time, he owned more property than the defendant; and he subsequently earned more than she did. As a result, he alleges, she was heavily dependent on him. During the period of cohabitation, the parties acquired further property. These acquisitions were financed largely by the plaintiff. Nevertheless, it was the defendant who, as the plaintiff asserts, benefited on separation financially to a greater extent than did he. Moreover, he alleges, the defendant has denied that the plaintiff has a half interest in a property at 27 Steele Street, Moonee Ponds, which half share the defendant holds in constructive trust for him. Indeed, according to the statement of claim, the parties hold all the property acquired by them during cohabitation on constructive trust for each other in equal shares.
It will be observed that the statement of claim does not seek relief pursuant to Part IX of the Property Law Act 1958. That part is headed “Property of Domestic Partners”. It provides by s.285 that a court may make an order adjusting the interests of the domestic partners in the property of one or both of them to the extent that seems just and equitable to the court. In doing so, the court is to have regard to the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to the acquisition, conservation or improvement of any of the property or to the financial resources of one or both of them. The Court is also to have regard to the contributions including any contributions made in the capacity of home-maker made by either of the domestic partners to the welfare of the other or to the welfare of any members of the family.
There is, however, a time limit for the making of an application of this kind. By s.282 of the Act, if domestic partners have ended their relationship, an application to a court for an order under Division 2 of Part 9 must be made within two years after the day on which the relationship ended. Nevertheless, a court may grant to a domestic partner leave to apply for an order at any time after the two-year 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.
The plaintiff is out of time. The issue of the Writ did not constitute an application under Part IX because it sought no relief under that part. The present application was eventually instituted by summons issued on 23 October 2007. The plaintiff seeks by that summons an order granting him leave to extend the time for the bringing of an application pursuant to Part IX of the Act to a date seven days from this day. He also seeks leave to amend his statement of claim in accordance with a document headed “Proposed Amended Statement of Claim”. Like the summons, it too is dated 23 October 2007.
A decision to grant or deny leave to apply for an order outside the period allowed by s.282(1) of the Act is one that is made in the exercise of the court's discretion. That discretion will ordinarily be influenced by any explanation for the delay, although the Act does not itself provide that such an explanation must be given before the discretion is exercised in an applicant's favour. The only condition required by the Act itself is that the court must be 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 leave were granted.
In my opinion, the plaintiff has provided a substantive explanation for portion of the delay. By May 2005, he was, according to a psychologist by whom he was treated over a period of some five months, exhibiting symptoms of a major depressive disorder. However, he made a 'fairly prompt and positive response to combined psychological and anti-depressant medication treatment' and ceased his ongoing relationship with the psychologist in October 2005.
I accept that this evidence accounts for the delay up until October 2005. After that, the best the plaintiff can do is say that he did not have the benefit of legal advice until June 2007 and was not aware of the limitation period.
Given that the application is made only ten months outside the period of limitation, I am prepared to accept that this explanation is sufficient to enable me to examine the issue of hardship, unencumbered by such negative influences on the exercise of my discretion as would have been created by a total absence of any explanation.
One of the bases upon which the defendant resists the application is that, shortly after the separation, she and the plaintiff entered into a binding agreement by which their property was divided between them. Because that agreement binds the plaintiff, he has, so the defendant submits, no right to seek to alter it.
The defendant may be correct. I am not, however, in a position to form a judgment about that. I am satisfied that the plaintiff has sufficiently denied the existence of the agreement. Its existence is squarely in issue; and accordingly this is a matter that must be determined at trial, if it is to be determined at all.
There remains the defendant's claim that she will suffer greater prejudice if leave is granted than the plaintiff will suffer if leave is refused. This part of her argument is supported by the final paragraphs of an affidavit sworn by her on 15 November 2007. In that affidavit she deposes, at paragraphs 12 and following, that:
Notwithstanding the finality of the agreement, the plaintiff ... later insisted I give him some furniture and chattels not previously discussed between us. He threatened to take me to court if I did not hand over to him those items. I did not want to go to court, so I agreed to, and did, deliver up to him the items demanded by him, in the firm and sincere belief that that would be the end of it all and there would be no court proceedings as threatened by him. If I had known that he was going to make this application, I would not have delivered up to him all of the items that I did deliver up to him under threat of such proceedings ... As deposed to earlier, I delivered up to the plaintiff all of the furniture and chattels that we agreed was to pass from me to him. I submit that I will suffer far greater prejudice than the plaintiff if his application for leave to make his Property Law Act 1958 Part 9 application out of time is granted, much of which cannot be compensated for by damages and/or costs orders.
In adjusting the interests of the parties, the Court can and will take into account the assertion by the defendant that she has provided the items in question to the plaintiff. It will also take into account her evidence about the agreement and the contributions each made to the property of each. On the other hand, to deny the plaintiff leave to apply for an order is to cut him out, at this stage, when the rights of the parties are incapable of final adjudication, from such relief, if any, as he may be entitled to obtain.
For these reasons, the application should, in my opinion, be granted. The parties should, however, seek to resolve their differences by mediation.
I will grant to the plaintiff leave to extend the time for the bringing of an application by him pursuant to Part IX of the Property Law Act 1958 to 4 pm on 11 December 2007. I will further grant the plaintiff leave to amend his statement of claim in accordance with the proposed amended statement of claim which has been handed to the court and which I will initial and place on the court file.
(Discussion ensued as to minutes of order and costs.)
In my opinion, costs should be costs in the cause. I appreciate the arguments put on behalf of the plaintiff, and I have taken into account the contents of the letter of 24 October 2007 to which my attention has been drawn. That letter was from the plaintiff's point of view entirely appropriate, and I certainly offer no criticism at all in relation to it. On the other hand, the plaintiff was seeking an indulgence from the court. He did not bring this application within the two years allowed by the Act. If the defendant succeeds ultimately in her assertion that there is a binding agreement between the parties which in effect precludes the plaintiff from making this claim, and if the claim is dismissed on that basis, or if the claim is dismissed because the actual division of property was, whether agreed or not, one which the court ultimately is satisfied accords with an appropriate disposition of that property, then the application for leave to extend the time within which to bring this proceeding will necessarily be shown to have been misconceived.
In those circumstances, because of the indulgence sought by the plaintiff and because ultimately it may be shown that that indulgence was not warranted, it seems to me that the appropriate order is for the costs to abide the event, and I will therefore order that they be costs in the cause.
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