CDK v AMA - [2009] QSC 190

SUPREME COURT OF QUEENSLAND

CITATION:

CDK & Ors v AMA [2009] QSC 190

PARTIES:

AMA
(Respondent/Plaintiff)
v
CDK
(Applicant/Defendant)
AND
S HOLDINGS PTY LTD AS TRUSTEE FOR THE S HOLDINGS TRUST
(Second Defendant)
AND
CDK AS TRUSTEE FOR THE C TRUST
(Third Defendant)
AND
S INVESTMENT PTY LTD AS TRUSTEE FOR THE S INVESTMENT TRUST
(Fourth Defendant)

FILE NO/S:

BS 10180 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23, 24, and 30 April and 20 June 2009

JUDGE:

P Lyons J

ORDERS:

1.          The Payment Order is varied by extending the time for payment.

2.          The parties are invited to provide further submissions on the question of the additional time to be allowed and whether any other orders should be made with a view to ensuring that payment occurs within the time specified.

3.          The parties are invited to provide submissions as to any costs to be awarded on the basis of the outcome of this application.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – PROPERTY AND MAINTENANCE OF PARTIES – ORDERS – Setting aside, variation, modification and discharge of orders – Setting aside orders altering property interests – Where impractical for orders to be carried out – Where the parties were in a de facto relationship – Where the de facto relationship has ended – Where the Applicant was ordered to comply with a Payment Order –Where the Applicant attempted to raise funds to comply with the Payment Order – Where the Applicant has attempted to satisfy but has not satisfied the requirements of the Payment Order – Where the Applicant seeks a variation of the Order to comply with the obligations of the Order – Where the Applicant seeks to vary the time for payment or the amount payable under the Order – Where the Applicant claims that circumstances have arisen since the order was made which make compliance with the order impracticable – Consideration of the word “impracticable” in s334(1) Property Law Act 1974 (Qld).

FAMILY LAW AND CHILD WELFARE – PROPERTY AND MAINTENANCE OF PARTIES – ORDERS – Setting aside, variation, modification and discharge of orders – Setting aside orders altering property interests – Whether default of party makes it just and equitable to set aside an order of the Court – Whether miscarriage of justice – Suppression of evidence – Other matters – Where the Applicant alleged that the Respondent engaged in intermeddling conduct which prevented the Applicant from satisfying the obligations of the Payment Order, making it just and equitable to vary the order.

Family Law Act 1975 (Cth), s 79A.
Property Law Act 1974 (Qld), s 334.

Jones v Dunkel (1959) 101 CLR 298, followed
Jackson v Lithgow [2008] NSWCA 312, followed
La Rocca and La Rocca (1991) 14 Fam LR 715, distinguished
Cawthorn v Cawthorn (1998) 23 Fam LR 86, followed
In the Marriage of Paskandy (2005) 33 Fam LR 509, considered

Rohde and…

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 CDK v AMA

Details

AGLC: CDK v AMA [2009] QSC 190
Case: [2009] QSC 190
Decision Date: 29 July 2009

CaseChat Overview and Summary

The case of CDK v AMA involved a dispute between de facto partners, CDK and AMA, regarding the enforcement of a property settlement order. CDK sought to vary the terms of the Payment Order made in their favour, which required them to make certain payments to AMA. CDK claimed that it had been impracticable for them to comply with the original order due to unforeseen circumstances and that AMA had engaged in intermeddling conduct that prevented CDK from satisfying the order. The primary legal issues before the court were whether the term "impracticable" in s334(1) of the Property Law Act 1974 (Qld) justified setting aside the order, and whether there had been a miscarriage of justice or intermeddling conduct that warranted a variation of the order.

The court considered the meaning of "impracticable" in the context of the Property Law Act and determined that it required an impossibility or extreme difficulty in complying with the order. The court found that while CDK had faced challenges in meeting the Payment Order, these difficulties did not reach the level of impracticability required to set aside the order. The court also examined the evidence regarding AMA's alleged intermeddling conduct and concluded that it did not prevent CDK from satisfying the obligations of the order. The court held that while the circumstances had changed since the order was made, this did not automatically make it just and equitable to vary the order. The court noted that the primary consideration was the welfare of any children of the relationship and the need for certainty and finality in property settlements.

The court varied the Payment Order by extending the time for payment, inviting the parties to provide further submissions on the additional time to be allowed and any other orders that might ensure payment within the specified timeframe. The court also invited the parties to submit on the question of costs based on the outcome of the application. This decision highlights the court's cautious approach to varying property settlement orders and the importance of considering the welfare of any children involved in the dispute.

Orders

Orders of the court

1. The Payment Order is varied by extending the time for payment.

2. The parties are invited to provide further submissions on the question of the additional time to be allowed and whether any other orders should be made with a view to ensuring that payment occurs within the time specified.

3. The parties are invited to provide submissions as to any costs to be awarded on the basis of the outcome of this application.

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:	CDK & Ors v AMA [2009] QSC 190
PARTIES:	AMA (Respondent/Plaintiff) v CDK (Applicant/Defendant) AND S HOLDINGS PTY LTD AS TRUSTEE FOR THE S HOLDINGS TRUST (Second Defendant) AND CDK AS TRUSTEE FOR THE C TRUST (Third Defendant) AND S INVESTMENT PTY LTD AS TRUSTEE FOR THE S INVESTMENT TRUST (Fourth Defendant)
FILE NO/S:	BS 10180 of 2006
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 July 2009
DELIVERED AT:	Brisbane
HEARING DATE:	22, 23, 24, and 30 April and 20 June 2009
JUDGE:	P Lyons J
ORDERS:	1. The Payment Order is varied by extending the time for payment. 2. The parties are invited to provide further submissions on the question of the additional time to be allowed and whether any other orders should be made with a view to ensuring that payment occurs within the time specified. 3. The parties are invited to provide submissions as to any costs to be awarded on the basis of the outcome of this application.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – PROPERTY AND MAINTENANCE OF PARTIES – ORDERS – Setting aside, variation, modification and discharge of orders – Setting aside orders altering property interests – Where impractical for orders to be carried out – Where the parties were in a de facto relationship – Where the de facto relationship has ended – Where the Applicant was ordered to comply with a Payment Order –Where the Applicant attempted to raise funds to comply with the Payment Order – Where the Applicant has attempted to satisfy but has not satisfied the requirements of the Payment Order – Where the Applicant seeks a variation of the Order to comply with the obligations of the Order – Where the Applicant seeks to vary the time for payment or the amount payable under the Order – Where the Applicant claims that circumstances have arisen since the order was made which make compliance with the order impracticable – Consideration of the word “impracticable” in s334(1) Property Law Act 1974 (Qld). FAMILY LAW AND CHILD WELFARE – PROPERTY AND MAINTENANCE OF PARTIES – ORDERS – Setting aside, variation, modification and discharge of orders – Setting aside orders altering property interests – Whether default of party makes it just and equitable to set aside an order of the Court – Whether miscarriage of justice – Suppression of evidence – Other matters – Where the Applicant alleged that the Respondent engaged in intermeddling conduct which prevented the Applicant from satisfying the obligations of the Payment Order, making it just and equitable to vary the order. Family Law Act 1975 (Cth), s 79A. Property Law Act 1974 (Qld), s 334. Jones v Dunkel (1959) 101 CLR 298, followed Jackson v Lithgow [2008] NSWCA 312, followed La Rocca and La Rocca (1991) 14 Fam LR 715, distinguished Cawthorn v Cawthorn (1998) 23 Fam LR 86, followed In the Marriage of Paskandy (2005) 33 Fam LR 509, considered Rohde and…