Cooper v Lees

Case [2009] SASC 386

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

COOPER v LEES

[2009] SASC 386

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Nyland)

17 December 2009

LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - OTHER CAUSES OF ACTION AND MATTERS

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - OTHER MATTERS

Respondent brought proceedings against appellant under the De Facto Relationships Act 1996 (SA) - proceedings were brought two years after expiration of time limit for bringing a claim under the Act - trial Judge refused to extend time within which to commence proceedings under the Act and dismissed respondent's claim under the Act - whether Judge erred in declining to extend time for commencing an action under the Act.

HELD: of most significance to the exercise of the power to extend time under s 9(3) of the Act are the prospects of the claim succeeding, the nature and amount of the claim, and the impact on an applicant of the refusal of an exension of time - other relevant factors include the explanation for the delay and the impact of a successful claim on an unsuccessful party - Judge's decision to refuse to extend limitation period not wrong - cross-appeal dismissed.

EQUITY - GENERAL PRINCIPLES - EQUITABLE DEFENCES - LACHES AND DELAY - EFFECT AND AVAILABILITY AS A DEFENCE

Judge upheld respondent's alternative claim in equity and declared that appellant held certain property on resulting and constructive trust for the respondent - whether limitation period applicable to a claim under the Act should apply by analogy to preclude the claims for declarations of constructive and resulting trust.

HELD: no close similarity between the relevant equitable principles and remedies and the remedy under the Act - no basis for importing the statutory time limit to preclude the claims in equity.

EQUITY - TRUSTS AND TRUSTEES - CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY - CLASSIFICATION OF TRUSTS IN GENERAL - IMPLIED TRUSTS

Appeal against declaration that appellant held shares and superannuation funds on resulting trust for the respondent, and held proceeds of sale of house on constructive trust for the respondent - whether the Act displaced the operation of equitable principles - whether Judge otherwise erred in making declarations.

HELD: while the Act allows a broader and more flexible approach than that taken in equity, the Act does not displace equitable principles - it is not unconscionable for a plaintiff to resort to equitable principles after the expiration of the time limit for making a claim under the Act - Judge did not err in making declarations - appeal dismissed.

De Facto Relationships Act 1996 (SA) s 9(3), s 10(1), s 11(1), s 12, s 16; Domestic Partners Property Act 1996 (SA), referred to.
Baumgartner v Baumgartner (1987) 164 CLR 137; Calverley v Green (1984) 155 CLR 242; Muschinski v Dodds (1984-1985) 160 CLR 583; Barker v Duke Group Ltd…

Continue reading Cooper v Lees

Sign in free to access the full text

Details
AGLC
Cooper v Lees [2009] SASC 386
Case
[2009] SASC 386
Decision Date

CaseChat Overview and Summary

The case of Cooper v Lees involves a dispute between Ms Cooper and Mr Lees regarding property interests arising from their de facto relationship, governed under the De Facto Relationships Act 1996 (SA). Ms Cooper initiated proceedings against Mr Lees under the Act, claiming that she was entitled to a share of the assets accumulated during their relationship. The crux of the dispute was whether the trial judge correctly refused to extend the statutory limitation period for bringing a claim under the Act, as the proceedings were filed two years after the relationship ended. The appeal focused on the trial judge's discretion under s 9(3) of the Act to extend the limitation period.

The legal issues revolved around the trial judge's exercise of discretion in deciding whether to extend the limitation period for bringing a claim under the De Facto Relationships Act 1996 (SA). The court had to consider whether the judge correctly assessed the prospects of success of the claim, the nature and amount of the claim, and the impact on Ms Cooper of the refusal to extend the time. Other relevant factors, such as the explanation for the delay and the impact of a successful claim on Mr Lees, were also examined. The court evaluated whether the trial judge's decision to refuse the extension of time was correct.

The court held that the trial judge's decision to refuse the extension of time was not erroneous. The court emphasized that the most significant factors in exercising the discretion to extend the limitation period are the prospects of the claim succeeding, the nature and amount of the claim, and the impact on the applicant of the refusal to extend time. Other relevant factors include the explanation for the delay and the impact of a successful claim on the opposing party. The court found that the trial judge had appropriately considered these factors and concluded that the refusal to extend the limitation period was justified. Consequently, the appeal was dismissed, and the cross-appeal was also dismissed.

In summary, the court upheld the trial judge's decision not to extend the limitation period for bringing a claim under the De Facto Relationships Act 1996 (SA). The appeal and cross-appeal were dismissed, affirming the trial judge's exercise of discretion in this matter.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Ms Cooper appeals against the orders in favour of Mr Lees. Mr Lees cross-appeals against the refusal of an extension of time for the making of a claim under the Act.Facts The parties met in about October 1995. Their relationship developed from there. Each of them was single at the time. When the parties met each of them was about 50 years old. Mr Lees was a senior public servant. Ms Cooper had held responsible and well paid positions, and was hoping to establish a new career combining her talent as an athlete with public speaking. A motor vehicle accident in April 1998 put an end to these plans. The Judge found that each of them was financially secure and had significant investments. Mr Lees owned a house at Gilberton and Ms Cooper owned a somewhat larger and more valuable house at St Peters. A schedule handed up by Mr Heywood-Smith QC, counsel for Ms Cooper, indicates that at the beginning of the relationship Mr Lees’ assets were worth about $1,436,000, and Ms Cooper’s assets were worth about $868,000. By March 1999 Mr Lees had moved into Ms Cooper’s house, and was living there with her. There is no dispute that Ms Cooper’s house would have commanded a higher rental than Mr Lees’ house at Gilberton. The parties considered living at Gilberton and renting the property at St Peters, but in the end decided to live at St Peters. The evidence was that the Gilberton property could be rented for about $300 per week, and the St Peters property for about $800 per week. Ms Cooper said that Mr Lees agreed to make up to Ms Cooper the difference of $500 a week, to compensate her for the loss of rental. The Judge apparently found that the rental from the Gilberton property was paid into an identified bank account, and that by agreement Ms Cooper was paid a fee to manage the rental of that property and was entitled to deduct $200 per week from the bank account for her own purposes: [28]. The Judge found that at an early stage the parties sought advice from accountants on how to plan their financial affairs, having regard to their relationship and the assets that they held. This was in May 1998 and again in January 1999. They sought advice because they had or anticipated a long term relationship: [14]. The aim appears to have been to maximise their income and to minimise taxation, as well as making provision for the future: [16]-[20]. The Judge found that a purchase of shares in AMP Limited by Mr Lees, and payments by him into a superannuation fund in the name of Ms Cooper, were made on the basis of that advice: [166]. The Judge rejected evidence from Ms Cooper tending to distance herself from the obtaining of that advice, and also rejected evidence from her that the contributions to her superannuation fund were to compensate her for loss of rental on the property at St Peters: [169]. It was in June 1998 (after the parties first sought advice on the management of their finances) that Mr Lees purchased the shares in AMP Limited in the name of Ms Cooper. The shares cost $18,810.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Judge ordered payment by Ms Cooper of the sum of $6,419. He found that the expenses were paid by Mr Lees, and that there was an implied agreement that Ms Cooper would repay these amounts, once she recovered them in her damages claim: [202]. These payments were the subject of some analysis by an accountant called by Ms Cooper who said that only $2,242 was identifiable as being paid by Mr Lees, and that the balance “appears to have been paid by [Ms Cooper] in cash or from her MasterCard”. The accountant appears to acknowledge a sum of $2,242.20 paid by Mr Lees, and to say that $2,473.15 of the medical expenses was paid from Ms Cooper’s MasterCard. As to that, Mr Wells counters that on the evidence it was Mr Lees who funded Ms Cooper’s MasterCard, and so that aspect of the accountant’s evidence went nowhere. Mr Heywood-Smith argued that according to the accountant a number of the payments were made by Ms Cooper before the de facto relationship began. There is evidence from the accountant suggesting that some amounts were paid before November 1999, although the significance of that date is not clear to me, because the parties were already living together. The evidence on this topic is not entirely clear, and it is more or less impossible for this Court on appeal to unravel the issue. I am not persuaded that the Judge is shown to be wrong, and accordingly reject this challenge to his decision.Conclusion For the reasons that I have given, the criticisms of the Judge’s decision are not sustained. The appeal should be dismissed, as should the cross-appeal. DUGGAN J: In my view the appeal and cross-appeal should be dismissed. I agree with the reasons of the Chief Justice. NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by the Chief Justice.

Ratio Decidendi

Legal Principle Established

The objects clause states that the purpose of the Act is:… to facilitate the resolution of property disputes arising on the termination of de facto relationships…The object is implemented by giving to the court the power to make an order for division of property “…in a way that is just and equitable”: s 10(1). Section 11 indicates that in the exercise of this power the court is to consider financial and non-financial contributions made by the de facto partners. Section 11(1) provides:11 Matters for consideration by the court(1) In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court—(a)must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to—(i)the acquisition, conservation or improvement of property of either or both partners; or(ii) the financial resources of either or both partners; and(b)must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and(c)must have regard to the terms of any relevant cohabitation agreement; and(d) may have regard to other relevant matters.…As well, by s 12 the court is required, as far as practicable, to resolve finally all questions about division of property as between the de facto partners. No doubt the intention of Parliament was to give courts a wider and more flexible power to resolve the claims of de facto partners than the court has when applying established equitable principles, in particular the principles relating to constructive trusts and resulting trusts. It is apparent that in exercising its jurisdiction under the Act, a court proceeds on the basis of principles quite different from those that apply in the exercise of the relevant equitable jurisdiction. No doubt the exercise of the court’s jurisdiction under the Act may be affected by a decision as to existing legal and equitable rights of the parties. But once the jurisdiction of the court under the Act is invoked, it is a jurisdiction to divide property in a way that is just and equitable, taking into consideration a wide range of matters. There will be some overlap between matters relevant under the Act and matters relevant when equitable principles are applied. The Act and equitable principles may well both operate on the circumstances of a given relationship. But it remains the case that relief under the Act is available on a wider, different and more flexible basis than is equitable relief. The time limit for making an application under the Act is found in s 9(3), which provides as follows:9 Property adjustment order…(3) An application for the division of property must be made within one year after the end of the de facto relationship unless the court, after considering the interests of both de facto partners, is satisfied that extension of this period of limitation is necessary to avoid serious injustice to the applicant.