Da v Kg - [2010] QSC 318

SUPREME COURT OF QUEENSLAND

CITATION:

DA v KG & Anor [2010] QSC 318

PARTIES:

DA
(applicant)
v
KG
(first respondent)
DG
(second respondent)

FILE NO/S:

S241 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

13 October 2010

DELIVERED AT:

Rockhampton

HEARING DATE:

27 September 2010

JUDGE:

McMeekin J

ORDER:

The application to extend time is refused.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – APPLICATION – where de facto spouse sought leave to apply for a property adjustment order under Pt 19 of the Property Law Act 1974 (Qld) – where more than two years have elapsed since the relationship ceased – whether there is a primary facie case for some adjustment – whether the applicant would suffer hardship if denied leave to apply – whether the discretion to grant leave to apply should be exercised in favour of the applicant

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – APPLICATION – where applicant sought declaration that the second respondent holds his interest in the subject property as trustee for the first respondent by way of a resulting or constructive trust – whether the declaration should be made

Family Law Act 1975 (Cth), s 44(4)(a)
Property Law Act 1974 (Qld), s 258, s 286(1), s 288, s 291,
s 292, s 301, s 309, s 341

Baumgartner v Baumgartner (1987) 164 CLR 137
D v D [2007] QSC 131
Deves v Porter [2003] NSWSC 625
HT v CS [2009] QSC 051
In the Marriage of Jacenko (1986) 11 Fam LR 341;
(1986) FLC 91-776
In the Marriage of Mackenzie (1978) 34 FLR 56; [1978] FLC 90-496
In the Marriage of Neocleous (1993) 113 FLR 451;
[1993] FLC 92-377
SAM v IDP [2006] QSC 344
In the Marriage of Whitford (1979) 35 FLR 445; [1979] FLC 90-612

COUNSEL:

A. Arnold for the applicant
M. Willey for the respondents

SOLICITORS:

Madden Solicitors for the applicant
Rees R & Sydney Jones for the respondents

[1] The applicant and the first respondent were in a de facto relationship for a period from about mid 2004 to February 2008 – three years and seven or eight months. The applicant seeks a property adjustment order pursuant to the provisions of Part 19 of the Property Law Act 1974 (“the Act”).

[2] The Court’s power to make a property adjustment order is governed by the provisions of s 288 of the Act which provides:

“(1) A court may make a property adjustment order only if –

(a) the application was made within 2 years after the day on which the de facto relationship ended; or

(b) the court has given the applicant leave to apply.

(2) The court may give leave only if it is satisfied hardship would result to the applicant or a child of the de facto partners if leave were not given.”

[3] The applicant seeks leave to proceed as he…

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 Da v Kg

Details

AGLC: Da v Kg [2010] QSC 318
Case: [2010] QSC 318
Decision Date: 13 October 2010

CaseChat Overview and Summary

The applicant in this case sought leave to apply for a property adjustment order under Part 19 of the Property Law Act 1974 (Qld), more than two years after the cessation of a de facto relationship with the first respondent. The application was opposed by the first respondent and the second respondent, who is the first respondent’s current spouse. The applicant also sought a declaration that the second respondent holds his interest in the subject property as trustee for the first respondent by way of a resulting or constructive trust.

The court had to decide whether there was a prima facie case for some adjustment, whether the applicant would suffer hardship if denied leave to apply, and whether the discretion to grant leave to apply should be exercised in favour of the applicant. Additionally, the court had to determine whether a declaration should be made that the second respondent holds his interest in the subject property as trustee for the first respondent by way of a resulting or constructive trust.

The court held that there was no evidence to support a finding that the applicant would suffer hardship if leave to apply was denied. It was found that the applicant’s economic circumstances had improved significantly since the end of the relationship, and the applicant had made no effort to improve her circumstances since that time. The court also found that the applicant had failed to establish a primary facie case for some adjustment of property interests. The court concluded that the discretion to grant leave to apply should not be exercised in favour of the applicant. The court further found that there was no basis for making the declaration sought by the applicant.

The application to extend time was refused.

Orders

Orders of the court

The application to extend time is refused.

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:	DA v KG & Anor [2010] QSC 318
PARTIES:	DA (applicant) v KG (first respondent) DG (second respondent)
FILE NO/S:	S241 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	13 October 2010
DELIVERED AT:	Rockhampton
HEARING DATE:	27 September 2010
JUDGE:	McMeekin J
ORDER:	The application to extend time is refused.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – APPLICATION – where de facto spouse sought leave to apply for a property adjustment order under Pt 19 of the Property Law Act 1974 (Qld) – where more than two years have elapsed since the relationship ceased – whether there is a primary facie case for some adjustment – whether the applicant would suffer hardship if denied leave to apply – whether the discretion to grant leave to apply should be exercised in favour of the applicant FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – APPLICATION – where applicant sought declaration that the second respondent holds his interest in the subject property as trustee for the first respondent by way of a resulting or constructive trust – whether the declaration should be made Family Law Act 1975 (Cth), s 44(4)(a) Property Law Act 1974 (Qld), s 258, s 286(1), s 288, s 291, s 292, s 301, s 309, s 341 Baumgartner v Baumgartner (1987) 164 CLR 137 D v D [2007] QSC 131 Deves v Porter [2003] NSWSC 625 HT v CS [2009] QSC 051 In the Marriage of Jacenko (1986) 11 Fam LR 341; (1986) FLC 91-776 In the Marriage of Mackenzie (1978) 34 FLR 56; [1978] FLC 90-496 In the Marriage of Neocleous (1993) 113 FLR 451; [1993] FLC 92-377 SAM v IDP [2006] QSC 344 In the Marriage of Whitford (1979) 35 FLR 445; [1979] FLC 90-612
COUNSEL:	A. Arnold for the applicant M. Willey for the respondents
SOLICITORS:	Madden Solicitors for the applicant Rees R & Sydney Jones for the respondents