DCJ v DAH

[2009] QSC 54

SUPREME COURT OF QUEENSLAND

CITATION:

DCJ v DAH [2009] QSC 54

PARTIES:

DCJ
(applicant)
v
DAH
(respondent)

FILE NO/S:

BS 4433 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2009

JUDGE:

Martin J

ORDER:

The applicant is to bring in appropriate minutes of order.

CATCHWORDS:

DE FACTO RELATIONSHIP – PROPERTY SETTLEMENT – where applicant brings claim for land owned by the respondent - where both parties contributed funds for purchase of property – where applicant was a party to the loan agreement - whether de facto relationship existed – whether relationship existed for over two years – whether application brought in time - whether applicant is entitled to a 50:50 division of property.

Property Law Act 1974, Part 19, s 286, s287, s 288, s 291, s 202, s 297, s 298, s 299, s 304, s 305, s 306, s 309.

FO v HAF [2007] 2 Qd R 138; [2006] QCA 555

COUNSEL:

P T White for the applicant
Respondent appeared on own behalf

SOLICITORS:

ABA Lawyers for the applicant
Respondent appeared on own behalf

1. This is an application for property adjustment orders under Part 19 of the Property Law Act 1974 (“PLA”).

The relationship

1. The applicant was born in 1967 and the respondent was born in 1962.

1. The applicant’s case is that the parties were in a de facto relationship from about the middle of September 2003 until 1 January 2006. The respondent, in his first affidavit, admitted the de facto relationship but said it commenced in December 2003 and concluded on 11 March 2005. On that basis, the respondent says that the application, having been filed on 23 April 2007, is out of time.

1. Section 288 of the PLA 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.”

1. If the respondent is correct, then the court could not make an order (in the absence of the considerations in s 287(b) and (c)) as the relationship did not subsist for at least two years. Section 287 provides:

“A court may make a property adjustment order only if it is satisfied –

(a)the de facto partners have lived together in a de facto relationship for at least 2 years; or

(b)there is a child of the de facto partners who is under 18 years; or

(c) the de facto partner who applied for the order has made substantial contributions of the kind mentioned in section 291 or 292 and failure to make the order would result in serious injustice to the de facto partner.”

1. The applicant says she…