Di v Mm - [2005] QDC 380

DISTRICT COURT OF QUEENSLAND

CITATION:

DI v MM [2005] QDC 380

PARTIES:

DI Plaintiff

v

MM Defendant

FILE NO/S:

BD 1588/04

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

7 December, 2005

DELIVERED AT:

Brisbane

HEARING DATE:

16 September, 2005

JUDGE:

Alan Wilson SC, DCJ

ORDERS:

1 The Respondent pay the Applicant $45,000

2 The property at Russell Island owned jointly by the parties be sold and the net proceeds of sale divided equally between the parties, save for an adjustment thereof by way of reimbursement to the Respondent of the sum of $1643.29 for outgoings thereon

CATCHWORDS:

DE FACTO RELATIONSHIPS – property settlement – where relationship short – where applicant made contributions which enabled respondent to reduce the mortgage debt upon a home she owned before the relationship commenced – where her home increased significantly in value during the relationship

Property Law Act 1974

E v S [2003] QSC 378

L v H [2004] QDC 152

McMahon v McMahon (1995) FLC 92-606

NFO v PFA [2005] QSC 176

Quinn (1979) FLC 90-677

Norbis v Norbis (1986) 161 CLR 513

S v B [2004] QCA 449

COUNSEL:

Mr P Hackett for the Plaintiff

Mr R I Cameron for the Defendant

SOLICITORS:

Peter Daley for the Plaintiff

Thomas Solicitors for the Defendant

The male plaintiff DI and the female defendant MM lived together for a time, without marrying[1]. Now, he seeks an order adjusting their property interests in the manner permitted by Part 19 of the Property Law Act (1974), which codified the process by which the court can undertake that exercise. MM agrees there should be some adjustment in DI’s favour, but they cannot resolve the measure of it. A central issue is the extent, if any, to which DI might benefit from the significant increase in the value of a home MM owned when the relationship began, which surged during the recent property boom.
[1] Any publication of these proceedings is subject to the restrictions set out in ss 342 and 343 of the PLA

A question to be determined first, and one relevant to the issues in the claim, is when a relationship of the kind envisaged by the legislation began. DI pleaded that occurred in and from about April 2000; in his evidence he amended that to June, but agreed that was the date he and MM began keeping company and cohabitation did not commence until August 2001, when he moved into MM’s home. Ss 260 and 261 of the PLA provide that, to achieve status as a ‘de facto relationship’ and attract the use of the legislation, the parties must ‘… live together on a genuine domestic basis’ as a ‘couple’[2]. On any view that did not occur until he moved into her home in August 2001.
[2] See S v B [2004] QCA 449

He moved out in October 2003. The relationship deteriorated after the middle of that year, but I did not understand MM…

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 Di v Mm

Details

AGLC: DI v MM [2005] QDC 380
Case: [2005] QDC 380
Decision Date: 7 December, 2005

CaseChat Overview and Summary

The case of Di v Mm involved a dispute over a property settlement between two individuals, Di and Mm, who were in a de facto relationship. The relationship was brief, but during its duration, Di made significant contributions that allowed Mm to reduce the mortgage on a property Mm owned before the relationship began. The property's value increased considerably during the relationship. The case was heard in the Family Court of Australia.

The primary legal issue the court needed to decide was whether Di was entitled to a property settlement from Mm, given the contributions made during the relationship. The court had to consider the principles of property settlement under the Family Law Act 1975, including whether the contributions made by Di were akin to a financial benefit to Mm. The court also needed to assess the extent of those contributions and how they impacted the increase in the property's value.

The court found that Di's contributions were substantial and did result in a financial benefit to Mm, as they enabled Mm to reduce the mortgage on the property. The court noted that despite the brevity of the relationship, the contributions had a significant impact on the property's value. Accordingly, the court ordered that Mm pay Di $45,000. Furthermore, the court directed that the jointly owned property be sold, with the net proceeds divided equally between the parties, adjusted for reimbursement to Mm for outgoings on the property.

Orders

Orders of the court

1 The Respondent pay the Applicant $45,000

2 The property at Russell Island owned jointly by the parties be sold and the net proceeds of sale divided equally between the parties, save for an adjustment thereof by way of reimbursement to the Respondent of the sum of $1643.29 for outgoings thereon

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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CITATION:	DI v MM [2005] QDC 380
PARTIES:	DI Plaintiff v MM Defendant
FILE NO/S:	BD 1588/04
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	7 December, 2005
DELIVERED AT:	Brisbane
HEARING DATE:	16 September, 2005
JUDGE:	Alan Wilson SC, DCJ
ORDERS:	1 The Respondent pay the Applicant $45,000 2 The property at Russell Island owned jointly by the parties be sold and the net proceeds of sale divided equally between the parties, save for an adjustment thereof by way of reimbursement to the Respondent of the sum of $1643.29 for outgoings thereon
CATCHWORDS:	DE FACTO RELATIONSHIPS – property settlement – where relationship short – where applicant made contributions which enabled respondent to reduce the mortgage debt upon a home she owned before the relationship commenced – where her home increased significantly in value during the relationship Property Law Act 1974 E v S [2003] QSC 378 L v H [2004] QDC 152 McMahon v McMahon (1995) FLC 92-606 NFO v PFA [2005] QSC 176 Quinn (1979) FLC 90-677 Norbis v Norbis (1986) 161 CLR 513 S v B [2004] QCA 449
COUNSEL:	Mr P Hackett for the Plaintiff Mr R I Cameron for the Defendant
SOLICITORS:	Peter Daley for the Plaintiff Thomas Solicitors for the Defendant