C v B - [2006] QSC 195

SUPREME COURT OF QUEENSLAND

CITATION:

C v B & Anor [2006] QSC 195

PARTIES:

C
(plaintiff)
v
B
(first defendant)
W
(second defendant)

FILE NO/S:

10985 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT: Supreme Court of Queensland

DELIVERED ON:

4 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2006

JUDGE:

McMurdo J

ORDER:

The defendants’ application filed on 10 February 2006 is dismissed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – RELATIONSHIP – where the plaintiff pleads that the first defendant and the plaintiff lived together in a de facto relationship in Queensland after 1999 and the relationship did not end before 2005 – whether the plaintiff and the first defendant were in a de facto relationship in Queensland – whether the relationship of the plaintiff and the first defendant ended before the commencement of part 19 of the Property Law Act 1974 (Qld)

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – where there is an application for an adjustment of the parties property interests under part 19 of the Property Law Act 1974 (Qld) – whether the jurisdiction to adjust the property interests of de facto partners at the end of a relationship under part 19 of the Property Law Act 1974 (Qld) is limited to property situated within Queensland or has a more general territorial operation

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – where there is an application for an adjustment of the parties property interests under part 19 of the Property Law Act 1974 (Qld) – where the second defendant holds certain real property upon a discretionary trust – whether first defendant’s rights in relation to the discretionary trust constitute “property” for the purposes of an adjustment of the parties property interests

PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – STAYING PROCEEDINGS – where the first and second defendants apply to stay or dismiss the proceedings for want of jurisdiction under r 16 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the claim should be stayed or dismissed

Family Law Act 1975 (Cth)
Acts Interpretation Act 1954 (Qld), s 32DA, s 35
Property Law Act 1974 (Qld), Part 19, s 255, s 257,
s 260, s 261, s 263, s 283, s 286(4), s 291, s 298, s 329, s 333, s 333(1)(o), s 337, s 341
Uniform Civil Procedure Rules 1999 (Qld), r 16, r 124
Property (Relationships) Act 1984 (NSW)

Bailey v The Uniting Church in Australia [1984] 1 Qd R 42, cited
Baker v Johnston, unreported, de Jersey CJ, SC No 7262 of 2005, 30 September 2005, discussed
Chung v McKinnirey, unreported, Ambrose J, SC No 56 of 2003, 28 May 2003, discussed
Davidson v Davidson (1991) FLC 92-197, cited
Harris v Harris (1991) FLC 92-254, cited
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, cited
Wanganui-Rangitikei Electrical Power Board v Australian Mutual Providence…

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.

Continue reading C v B

Details

AGLC: C v B [2006] QSC 195
Case: [2006] QSC 195
Decision Date: 4 August 2006

CaseChat Overview and Summary

The case of C v B involved the plaintiff seeking to establish that they were in a de facto relationship with the first defendant in Queensland from 1999 until 2005. The plaintiff also sought an adjustment of the parties' property interests under part 19 of the Property Law Act 1974 (Qld). The first defendant denied that they were in a de facto relationship with the plaintiff, and both defendants argued that the court lacked jurisdiction to adjust property interests. The defendants further applied to stay or dismiss the proceedings for want of jurisdiction under rule 16 of the Uniform Civil Procedure Rules 1999 (Qld).

The primary legal issues in the case were whether the plaintiff and the first defendant were in a de facto relationship in Queensland and whether the court had jurisdiction to adjust the property interests of the de facto partners. Additionally, the court had to determine whether the jurisdiction to adjust property interests under part 19 of the Property Law Act 1974 (Qld) was limited to property situated within Queensland or had a broader territorial application. The court also had to ascertain whether the first defendant's rights in relation to a discretionary trust constituted "property" for the purposes of an adjustment of the parties' property interests.

The court found that the plaintiff and the first defendant were in a de facto relationship in Queensland. It concluded that the jurisdiction to adjust the property interests of de facto partners at the end of a relationship under part 19 of the Property Law Act 1974 (Qld) was not limited to property situated within Queensland and had a more general territorial operation. The court also determined that the first defendant's rights in relation to the discretionary trust constituted "property" for the purposes of an adjustment of the parties' property interests. Finally, the court dismissed the defendants' application to stay or dismiss the proceedings for want of jurisdiction.

The court dismissed the application by the defendants to stay or dismiss the proceedings for want of jurisdiction.

Orders

Orders of the court

The defendants’ application filed on 10 February 2006 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	C v B & Anor [2006] QSC 195
PARTIES:	C (plaintiff) v B (first defendant) W (second defendant)
FILE NO/S:	10985 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	4 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	28 July 2006
JUDGE:	McMurdo J
ORDER:	The defendants’ application filed on 10 February 2006 is dismissed.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – RELATIONSHIP – where the plaintiff pleads that the first defendant and the plaintiff lived together in a de facto relationship in Queensland after 1999 and the relationship did not end before 2005 – whether the plaintiff and the first defendant were in a de facto relationship in Queensland – whether the relationship of the plaintiff and the first defendant ended before the commencement of part 19 of the Property Law Act 1974 (Qld) FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – where there is an application for an adjustment of the parties property interests under part 19 of the Property Law Act 1974 (Qld) – whether the jurisdiction to adjust the property interests of de facto partners at the end of a relationship under part 19 of the Property Law Act 1974 (Qld) is limited to property situated within Queensland or has a more general territorial operation FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – where there is an application for an adjustment of the parties property interests under part 19 of the Property Law Act 1974 (Qld) – where the second defendant holds certain real property upon a discretionary trust – whether first defendant’s rights in relation to the discretionary trust constitute “property” for the purposes of an adjustment of the parties property interests PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – STAYING PROCEEDINGS – where the first and second defendants apply to stay or dismiss the proceedings for want of jurisdiction under r 16 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the claim should be stayed or dismissed Family Law Act 1975 (Cth) Acts Interpretation Act 1954 (Qld), s 32DA, s 35 Property Law Act 1974 (Qld), Part 19, s 255, s 257, s 260, s 261, s 263, s 283, s 286(4), s 291, s 298, s 329, s 333, s 333(1)(o), s 337, s 341 Uniform Civil Procedure Rules 1999 (Qld), r 16, r 124 Property (Relationships) Act 1984 (NSW) Bailey v The Uniting Church in Australia [1984] 1 Qd R 42, cited Baker v Johnston, unreported, de Jersey CJ, SC No 7262 of 2005, 30 September 2005, discussed Chung v McKinnirey, unreported, Ambrose J, SC No 56 of 2003, 28 May 2003, discussed Davidson v Davidson (1991) FLC 92-197, cited Harris v Harris (1991) FLC 92-254, cited Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, cited Wanganui-Rangitikei Electrical Power Board v Australian Mutual Providence…