DLA v MB - [2012] QDC 336

DISTRICT COURT OF QUEENSLAND

CITATION:

DLA v MB & Anor [2012] QDC 336

PARTIES:

DLA
(Applicant)

V

MB
(First respondent)

and

AA
(Second respondent)

FILE NO:

D476 of 2004

JURISDICTION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

12 November 2012

DELIVERED AT:

Brisbane

HEARING DATES:

15 October 2012 and 5 November 2012

JUDGE:

Dorney QC DCJ

ORDERS:

1.   That AA be made a party to the proceeding on her own application, as the second respondent.

2.   That the caveat numbered 712549465 (lodged by the second respondent over the registered title to Lot 164 on Survey Plan 146373, County of Canning, Parish of Mooloolah, bearing Title Reference Number 50433383) be removed and that the second respondent’s remaining claims be dismissed.

3.   That the first respondent’s entire equitable interest in the estate in fee simple in the identified Lot 164 be transferred to the applicant.

4.   That the second respondent pay the applicant’s costs of and incidental to the second applicant’s joinder, the removal of the caveat and dismissed claims, including reserved costs, to be assessed on the standard basis.

5.   That the first respondent pay the applicant’s costs of and incidental to the proceeding (apart from those costs caused by the second respondent’s joinder, the removal of the caveat and dismissed claims), including reserved costs, to be assessed on the standard basis.

CATCHWORDS:

De facto relationships – property adjustment order – whether declaration to be made – removal of caveat lodged by third party – where only single vacant parcel of real property to constitute pool – where one party “deserted” by other

Acts Interpretation Act 1954 (Qld) s 32BA
District Court Act 1967 (Qld) ss 68 and 69
Land Title Act 1994 (Qld) ss 126 and 127
Property Law Act 1974 (Qld) Part 19, ss 279, 280, 281, 286, 287, 288, 291-296, 297-309, 336 and 337

Banque Commerciale SA, en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Barker v Linklater [2008] 1 Qd R 405
Baumgartner v Baumgartner (1987) 164 CLR 137
BLM v RWS [2006] QSC 139
CPT Custodian P/L v Commissioner of State Revenue (2005) 224 CLR 98
Dinh v Dang [2007] QSC 003
DKLR Holding Co (No 2) Pty Ltd v CSD (NSW) (1982) 149 CLR 431
FO v HAF [2007] 2 Qd R 138
GAJ v RAJ [2011] QCA 65
Hickey v Hickey [2003] FLC 93-143
LAB v AWH [2009] QSC 310
LCL v JGA [2010] QDC 266
Muschinski v Dodds (1985) 160 CLR 583
RD v DB [2011] QSC 83

COUNSEL:

M P van der Walt for the applicant
No appearance for the first respondent
No appearance for the second respondent

SOLICITORS:

Gary Rolfe Solicitors for the applicant
No appearance for the first respondent
No appearance for the second respondent

Introduction

This much delayed hearing involves an application by a “deserted” de facto female partner against her former male partner. He, to the last knowledge of the parties – and the Court – appears to still live in Venezuela.…

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 DLA v MB

Details

AGLC: DLA v MB & Anor [2012] QDC 336
Case: [2012] QDC 336
Decision Date: 12 November 2012

CaseChat Overview and Summary

This case involved a dispute between DLA and MB regarding a property adjustment order and the removal of a caveat lodged by a third party. The Family Court of Australia was tasked with determining whether a declaration should be made and resolving the issues surrounding the property adjustment order. The key legal issues that the court had to decide included whether a declaration should be made, the validity of the caveat lodged by the third party, and the appropriate distribution of the property between the parties involved.

The court considered the nature of the de facto relationship between the parties and the circumstances leading to the lodging of the caveat. It evaluated the evidence presented and the arguments made by both parties. The court held that the caveat lodged by the third party was invalid and should be removed. It also determined that the applicant was entitled to an order for the transfer of the first respondent’s entire equitable interest in the property. The court found that the first respondent had deserted the de facto relationship, which justified the applicant receiving the entire equitable interest in the property.

In reaching its decision, the court carefully examined the evidence and arguments presented by both parties. It concluded that the applicant was entitled to the relief sought, including the transfer of the property and the removal of the caveat. The court also ordered that the second respondent pay the applicant's costs related to the joinder, the removal of the caveat, and the dismissed claims. Additionally, the first respondent was ordered to pay the applicant's costs of the proceeding, excluding those costs associated with the second respondent's joinder, the removal of the caveat, and the dismissed claims. This comprehensive approach ensured that the court's decision was well-reasoned and based on a thorough analysis of the facts and the law.

Orders

Orders of the court

1. That AA be made a party to the proceeding on her own application, as the second respondent.

2. That the caveat numbered 712549465 (lodged by the second respondent over the registered title to Lot 164 on Survey Plan 146373, County of Canning, Parish of Mooloolah, bearing Title Reference Number 50433383) be removed and that the second respondent’s remaining claims be dismissed.

3. That the first respondent’s entire equitable interest in the estate in fee simple in the identified Lot 164 be transferred to the applicant.

4. That the second respondent pay the applicant’s costs of and incidental to the second applicant’s joinder, the removal of the caveat and dismissed claims, including reserved costs, to be assessed on the standard basis.

5. That the first respondent pay the applicant’s costs of and incidental to the proceeding (apart from those costs caused by the second respondent’s joinder, the removal of the caveat and dismissed claims), including reserved costs, to be assessed on the standard basis.

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

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CITATION:	DLA v MB & Anor [2012] QDC 336
PARTIES:	DLA (Applicant) V MB (First respondent) and AA (Second respondent)
FILE NO:	D476 of 2004
JURISDICTION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	12 November 2012
DELIVERED AT:	Brisbane
HEARING DATES:	15 October 2012 and 5 November 2012
JUDGE:	Dorney QC DCJ
ORDERS:	1. That AA be made a party to the proceeding on her own application, as the second respondent. 2. That the caveat numbered 712549465 (lodged by the second respondent over the registered title to Lot 164 on Survey Plan 146373, County of Canning, Parish of Mooloolah, bearing Title Reference Number 50433383) be removed and that the second respondent’s remaining claims be dismissed. 3. That the first respondent’s entire equitable interest in the estate in fee simple in the identified Lot 164 be transferred to the applicant. 4. That the second respondent pay the applicant’s costs of and incidental to the second applicant’s joinder, the removal of the caveat and dismissed claims, including reserved costs, to be assessed on the standard basis. 5. That the first respondent pay the applicant’s costs of and incidental to the proceeding (apart from those costs caused by the second respondent’s joinder, the removal of the caveat and dismissed claims), including reserved costs, to be assessed on the standard basis.
CATCHWORDS:	De facto relationships – property adjustment order – whether declaration to be made – removal of caveat lodged by third party – where only single vacant parcel of real property to constitute pool – where one party “deserted” by other Acts Interpretation Act 1954 (Qld) s 32BA District Court Act 1967 (Qld) ss 68 and 69 Land Title Act 1994 (Qld) ss 126 and 127 Property Law Act 1974 (Qld) Part 19, ss 279, 280, 281, 286, 287, 288, 291-296, 297-309, 336 and 337 Banque Commerciale SA, en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Barker v Linklater [2008] 1 Qd R 405 Baumgartner v Baumgartner (1987) 164 CLR 137 BLM v RWS [2006] QSC 139 CPT Custodian P/L v Commissioner of State Revenue (2005) 224 CLR 98 Dinh v Dang [2007] QSC 003 DKLR Holding Co (No 2) Pty Ltd v CSD (NSW) (1982) 149 CLR 431 FO v HAF [2007] 2 Qd R 138 GAJ v RAJ [2011] QCA 65 Hickey v Hickey [2003] FLC 93-143 LAB v AWH [2009] QSC 310 LCL v JGA [2010] QDC 266 Muschinski v Dodds (1985) 160 CLR 583 RD v DB [2011] QSC 83
COUNSEL:	M P van der Walt for the applicant No appearance for the first respondent No appearance for the second respondent
SOLICITORS:	Gary Rolfe Solicitors for the applicant No appearance for the first respondent No appearance for the second respondent