DMH v OAL - [2009] QSC 61

SUPREME COURT OF QUEENSLAND

CITATION:

DMH v OAL [2009] QSC 61

PARTIES:

DMH
(applicant)
v
OAL
(respondent)
RNL
(third party)

FILE NO/S:

BS 3917 of 2006

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2008, 2-4 March 2009

JUDGE:

Dutney J

ORDER:

If within 28 days of today’s date (“the payment date”) the respondent:1.

pays to the applicant the sum of $77,000, (“the payment”) and(a)

obtains from the mortgagee a release (“the release”) in favour of the applicant of all her obligations pursuant to mortgage number 708797023,(b)

the applicant shall execute a transfer of her interest in the property at Griffith Avenue, Tewantin, described as Lot 184 on Registered Plan 886724 in the County of March, Parish of Tewantin, title reference 50075274 to the respondent within seven days of the receipt of such transfer from the respondent or his solicitors and in the event that the transfer is not executed by the applicant within such period of seven days the registrar is empowered to execute such transfer on her behalf.

In the event that the respondent makes the payment and provides the release by the payment date, the applicant shall be entitled to the moneys presently held in Pippa Colman & Associates Trust Account absolutely.2.

In the event that the respondent does not make the payment and provide the release to the applicant by the payment date, I order that the applicant be at liberty to sell the property situated at Griffith Avenue, Tewantin, described as Lot 184 on Registered Plan 886724 in the County of March, Parish of Tewantin, title reference 50075274 (“Tewantin”) and to retain for her own use absolutely the net proceeds of such sale.3.

In the event that the respondent does not make the payment and provide the release by the payment date, I order the respondent to deliver up vacant possession of Tewantin to the applicant within 14 days of service of notice that such vacant possession is required.4.

In the event of a sale of Tewantin by the applicant, I order that the applicant be at liberty to sign any transfer of such property on her own behalf and on behalf of the respondent.5.

If the respondent fails to make the payment and provide the release by the payment date, I order that the respondent is entitled absolutely to the sum of $30,000 presently held in Pippa Colman & Associates Trust Account and that the balance of the funds so held are the property of the applicant.6.

In relation to the cross application by the third party, I declare that subject to the rights of the mortgagee pursuant to mortgage number 707554830 the third party is beneficially entitled to the whole of the real property situated at Lot 510 Ward Road, Glenwood, more particularly described as Lot 510 on Registered Plan 160316 in the County of March, Parish of Gutchy…

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 DMH v OAL

Details

AGLC: DMH v OAL [2009] QSC 61
Case: [2009] QSC 61
Decision Date: 23 March 2009

CaseChat Overview and Summary

DMH sought a property adjustment from OAL under the Property Law Act 1974 (Qld) in relation to a property located at Griffith Avenue, Tewantin. The couple had been in a de facto relationship for approximately two years. DMH claimed disproportionate capital contributions to the property, which was held on trust for a third party. The court was tasked with determining whether DMH was entitled to a property adjustment and, if so, the extent of that adjustment. Additionally, the court needed to address the rights of the third party regarding the property.

The court considered the duration of the relationship and the disproportionate capital contributions made by DMH. It noted that the relationship was relatively short, which influenced the assessment of the property adjustment. The court also examined the trust arrangement regarding the property and the third party's interest. The court found that DMH was entitled to a property adjustment but that the amount should reflect the short duration of the relationship and the disproportionate contributions. The court determined that the third party held a beneficial interest in another property held by OAL.

The court ordered that if OAL made the specified payment and released DMH from the mortgage obligations within 28 days, DMH would transfer her interest in the Tewantin property to OAL. If OAL failed to make the payment and release, DMH could sell the property and retain the net proceeds. OAL would also be required to deliver vacant possession of the property to DMH. The court further declared the third party's beneficial interest in another property and ordered DMH to pay the third party's costs of the application.

Orders

Orders of the court

If within 28 days of today’s date (“the payment date”) the respondent:1.

pays to the applicant the sum of $77,000, (“the payment”) and(a)

obtains from the mortgagee a release (“the release”) in favour of the applicant of all her obligations pursuant to mortgage number 708797023,(b)

the applicant shall execute a transfer of her interest in the property at Griffith Avenue, Tewantin, described as Lot 184 on Registered Plan 886724 in the County of March, Parish of Tewantin, title reference 50075274 to the respondent within seven days of the receipt of such transfer from the respondent or his solicitors and in the event that the transfer is not executed by the applicant within such period of seven days the registrar is empowered to execute such transfer on her behalf.

In the event that the respondent makes the payment and provides the release by the payment date, the applicant shall be entitled to the moneys presently held in Pippa Colman & Associates Trust Account absolutely.2.

In the event that the respondent does not make the payment and provide the release to the applicant by the payment date, I order that the applicant be at liberty to sell the property situated at Griffith Avenue, Tewantin, described as Lot 184 on Registered Plan 886724 in the County of March, Parish of Tewantin, title reference 50075274 (“Tewantin”) and to retain for her own use absolutely the net proceeds of such sale.3.

In the event that the respondent does not make the payment and provide the release by the payment date, I order the respondent to deliver up vacant possession of Tewantin to the applicant within 14 days of service of notice that such vacant possession is required.4.

In the event of a sale of Tewantin by the applicant, I order that the applicant be at liberty to sign any transfer of such property on her own behalf and on behalf of the respondent.5.

If the respondent fails to make the payment and provide the release by the payment date, I order that the respondent is entitled absolutely to the sum of $30,000 presently held in Pippa Colman & Associates Trust Account and that the balance of the funds so held are the property of the applicant.6.

In relation to the cross application by the third party, I declare that subject to the rights of the mortgagee pursuant to mortgage number 707554830 the third party is beneficially entitled to the whole of the real property situated at Lot 510 Ward Road, Glenwood, more particularly described as Lot 510 on Registered Plan 160316 in the County of March, Parish of Gutchy and being the land comprised in title reference 15840090 and I further declare that the respondent holds the said property at Lot 510 Ward Road, Glenwood, on trust for the third party.7.

I order the applicant to pay the third party’s costs of and incidental to the third party’s application to be assessed on the standard basis.8.

Unless otherwise dealt with by these orders, each party is to retain for their own use and benefit absolutely such property as is presently in that party’s possession.9.

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:	DMH v OAL [2009] QSC 61
PARTIES:	DMH (applicant) v OAL (respondent) RNL (third party)
FILE NO/S:	BS 3917 of 2006
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2008, 2-4 March 2009
JUDGE:	Dutney J
ORDER:	If within 28 days of today’s date (“the payment date”) the respondent:1. pays to the applicant the sum of $77,000, (“the payment”) and(a) obtains from the mortgagee a release (“the release”) in favour of the applicant of all her obligations pursuant to mortgage number 708797023,(b) the applicant shall execute a transfer of her interest in the property at Griffith Avenue, Tewantin, described as Lot 184 on Registered Plan 886724 in the County of March, Parish of Tewantin, title reference 50075274 to the respondent within seven days of the receipt of such transfer from the respondent or his solicitors and in the event that the transfer is not executed by the applicant within such period of seven days the registrar is empowered to execute such transfer on her behalf. In the event that the respondent makes the payment and provides the release by the payment date, the applicant shall be entitled to the moneys presently held in Pippa Colman & Associates Trust Account absolutely.2. In the event that the respondent does not make the payment and provide the release to the applicant by the payment date, I order that the applicant be at liberty to sell the property situated at Griffith Avenue, Tewantin, described as Lot 184 on Registered Plan 886724 in the County of March, Parish of Tewantin, title reference 50075274 (“Tewantin”) and to retain for her own use absolutely the net proceeds of such sale.3. In the event that the respondent does not make the payment and provide the release by the payment date, I order the respondent to deliver up vacant possession of Tewantin to the applicant within 14 days of service of notice that such vacant possession is required.4. In the event of a sale of Tewantin by the applicant, I order that the applicant be at liberty to sign any transfer of such property on her own behalf and on behalf of the respondent.5. If the respondent fails to make the payment and provide the release by the payment date, I order that the respondent is entitled absolutely to the sum of $30,000 presently held in Pippa Colman & Associates Trust Account and that the balance of the funds so held are the property of the applicant.6. In relation to the cross application by the third party, I declare that subject to the rights of the mortgagee pursuant to mortgage number 707554830 the third party is beneficially entitled to the whole of the real property situated at Lot 510 Ward Road, Glenwood, more particularly described as Lot 510 on Registered Plan 160316 in the County of March, Parish of Gutchy…