FDM v MD

[2012] QDC 52

DISTRICT COURT OF QUEENSLAND

CITATION:

FDM v MD [2012] QDC 52

PARTIES:

FDM
(Applicant)

v

MD
(Respondent)

FILE NO/S:

D92/12

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

26 March 2012

DELIVERED AT:

Southport

HEARING DATE:

19 March 2012

JUDGE:

Newton DCJ

ORDER:

The Originating Application be stayed pending the conclusion of the appeal proceedings in the Family Court of Australia.

COUNSEL:

B. Curran on behalf of the applicant

P. Morrow on behalf of the respondent

SOLICITORS:

Browns Lawyers on behalf of the applicant

Craig Ray & Associates on behalf of the respondent

1. By way of an Originating Application the applicant seeks the following orders:

1.          A declaration that the beneficial interest in real property situated at XYZ (“the XYZ property”) pursuant to a trust, resides with the applicant and respondent as tenants in common in equal shares.

2.          An order that the Registrar of Titles, Queensland note on the title to the XYZ property the declaration in paragraph 1 of these orders.

3. An order that the XYZ property vest in JHC (“the trustee”) as trustee to be held by the trustee on a statutory trust for sale pursuant to the provisions of section 38 of the Property Law Act 1974.

4.          That the trustee pay the net proceeds of sale of the XYZ property to each of the applicant and respondent in equal shares.

5.          The respondent pay the applicant’s costs of and incidental to the application to be assessed.

6.          For such further or other orders as the Court may deem meet.

1. The respondent is the former de facto partner of the applicant.  The duration of that relationship remains in dispute.  The applicant deposes to the relationship existing “off and on” from March 1999 to August 2009 with the parties being separated and living apart for some periods of time during that period. 

1. In June 2005 the applicant commenced proceedings in the Supreme Court for property adjustment orders under Part 19 of the Property Law Act 1974 particularly with respect to the XYZ property.

1. On 9 March 2005 the applicant lodged a caveat upon the title to the XYZ property claiming an estate or interest in the property.

1. In or around September 2005 the parties, according to the applicant, reconciled their relationship and resumed co-habiting.  Discussions continued between them concerning the Supreme Court proceedings culminating in the signing, on 9 February 2006, of a Deed of Release and Declaration of Trust which purported to settle the Supreme Court proceedings by the granting to the applicant of a one half share in the XYZ property.

1. The applicant claims that the Declaration of Trust, which was attached to the Deed of Release, was not provided to him and that he has only an unsigned copy.  The original Deed of Release and Declaration of Trust remain in the possession of the respondent.

1. The applicant claims that he made substantial contributions to the acquisition, maintenance and improvement of the XYZ property.  The parties maintained a joint bank account into…