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 341Baumgartner 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 90-612COUNSEL:
A. Arnold for the applicant
M. Willey for the respondentsSOLICITORS:
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…
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- Da v Kg [2010] QSC 318
- Case
- [2010] QSC 318
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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