Ferras & Chong
[2022] FedCFamC2F 1495
Federal Circuit and Family Court of Australia
(DIVISION 2)
Ferras & Chong [2022] FedCFamC2F 1495
File number(s): MLC 4455 of 2021 Judgment of: JUDGE BENDER Date of judgment: 25 October 2022 Catchwords: FAMILY LAW – PROPERTY – the Applicant de facto Husband’s application seeking property orders – where the application was filed out of time – the Applicant seeks leave to institute proceedings out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth) – the Respondent de facto Wife argues that leave should not be granted.
FAMILY LAW – HELD – the Applicant’s application was filed out of time – the Applicant does not have a reasonable and arguable case – the Applicant is unable to establish he would suffer hardship in the event leave is not granted – the application for leave to proceed out of time be dismissed.
Legislation: Corporations Act 2001 (Cth)
Fair Work Act 2009 (Cth)
Family Law Act 1975 (Cth), ss 44(3), 44(5), 44(6)
Federal Circuit Court Rules 2001 (Cth)
Cases cited: Arcand & Boen [2021] FamCAFC 155
Sharp & Sharp [2011] FamCAFC 150
Welland & Hawthorn [2021] FedCFamC1A 43
Whitford & Whitford [1979] FamCA 3
Division: Division 2 Family Law Number of paragraphs: 58 Date of hearing: 25 October 2022 Place: Melbourne The Applicant: The Applicant appeared in person Counsel for the Respondent: Ms Fisken Solicitor for the Respondent: Carew Counsel Solicitors ORDERS
MLC 4455 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FERRAS
Applicant
AND: MS CHONG
Respondent
order made by:
JUDGE BENDER
DATE OF ORDER:
25 OCTOBER 2022
THE COURT ORDERS THAT:
1.The Application for leave to proceed out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth) be dismissed.
2.The matter be removed from the list of cases requiring any further determination of the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Ferras & Chong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)JUDGE BENDER:
intoduction
These proceedings commenced by way of an Initiating Application filed by the Applicant de facto Husband seeking property orders following the breakdown of the parties’ relationship.
The Applicant’s then-solicitor attempted to file an Initiating Application in the Federal Circuit Court of Australia on 19 March 2021. That application was not accepted by the Court as it was not accompanied by a Financial Statement as is required under the Federal Circuit Court Rules 2001 (Cth). The Applicant’s solicitor filed a further Initiating Application accompanied by the appropriate documentation. That application was filed and accepted by the Court on 22 April 2021.
In response to the application filed by the Applicant, the Respondent de facto Wife sought orders that the application be dismissed on the basis that it had been filed outside the time allowed under the Family Law Act 1975 (Cth) (“the Act”), as it was filed more than two years after the date the parties separated.
In the alternative, the Respondent argued that in the event the application was filed within time then it should be summarily dismissed on the basis that it has no reasonable prospect for success. If the application was filed out of time then leave should not be granted pursuant to section 44(6) of the Act.
Considerable affidavit material was filed by both parties in relation to the date of separation.
Whilst the Respondent argued the relationship finished in November 2018 and the Applicant argued the relationship was finally over on 25 April 2019, a perusal of all the parties’ affidavit material makes it very clear that the relationship was over by March 2019. As such, the application filed by the Applicant was filed out of time, given that the date upon which it properly came before the Court was on 22 April 2019.
For those reasons it was agreed that the matter would proceed today on the basis that the Applicant is seeking leave to institute proceedings out of time pursuant to section 44(6) of the Act.
The matter proceeded by way of oral submissions supported by the extensive affidavit material that run to some hundreds of pages that were filed by both parties.
Background
The Applicant was born in 1988 and is 34 years of age. He was the operator proprietor of a business providing landscaping services, Company B operated under the company C Pty Ltd (“Company B”). He is currently unemployed.
The Respondent was born in 1990 and is 32 years of age. Since the breakdown of the parties’ relationship, the Respondent has married and she and her now-husband reside in the United States of America. She is not in paid employment.
In 2010, the Respondent’s mother passed away without a will. Letters of administration were granted in favour in of the Respondent who was guardian for her then-minor sister. The assets of the Respondent’s late mother consisted primarily of real estate which was sold. In 2015 the estate was divided equally between the Respondent and her sister as her sister had achieved her majority. The Respondent received approximately $480,000 from her late mother’s estate.
In 2015, the parties started dating. At that time the Applicant was living with his parents and the Respondent was living in rented accommodation.
In November 2015, the Respondent purchased the property at D Street, Suburb E for $670,000. She paid the deposit of $67,000 from the funds invested by her from the inheritance from her mother. She borrowed $536,000 from National Australia Bank and the balance of the purchase monies and associated purchase costs including stamp duty and conveyancing costs of approximately $67,000 was paid from the funds that were held by the Respondent from her late mother’s estate.
Prior to the settlement of D Street, Suburb E, the Respondent advanced the Applicant a sum of $40,000 which was paid into either the Applicant’s personal account or the account of Company B.
The Respondent spent $26,500 of her inherited money to purchase furniture and other items for D Street, Suburb E. In or around December 2015, the parties commenced living together, initially at the home of the Applicant’s parents before moving into D Street, Suburb E together upon the settlement at the end of January 2016.
In March 2016, the Respondent transferred $295,000 of her inheritance funds into the National Australia Bank redraw facility, lowering the mortgage balance on D Street, Suburb E to $240,000. Between September 2016 and July 2018, the Respondent transferred either to the Applicant’s personal account or to the Company B account a total amount of $213,398 from the redraw facility, increasing the mortgage owing on D Street, Suburb E accordingly.
When the parties commenced cohabitation, they agreed that the Applicant would be responsible for the mortgage payments. The basis upon which that agreement was reached is disputed between the parties. It is the Applicant’s evidence that it was considered to be his contribution towards that property. It is the Respondent’s evidence that it was in lieu of rent and interest on the monies that she had loaned to the Applicant for his business.
In relation to the monies that were advanced to the Applicant and/or the business, the Respondent’s evidence is that it was a loan to the business that she expected to be repaid. It is the Applicant’s evidence that it was never loaned, but rather the contributions that the Respondent was making to the business and to their living expenses as part of their ongoing relationship.
The relationship between the Applicant and Respondent was tumultuous. There were many “mini-separations” and many arguments and disagreements. The Applicant would often leave D Street, Suburb E and stay at his parents’ home for days or weeks to give the parties space while they tried to sort things out. The Applicant’s parents live just around the corner from D Street, Suburb E. It is the evidence of both parties that they both suffered mental health issues during the relationship, including depression and anxiety. The Applicant also had physical health difficulties during the relationship.
Much of the dispute between the parties in relation to the date of separation arose from whether the Applicant living primarily with his parents from November 2018 was yet another mini-separation or whether it was the end to the parties’ relationship.
Each of the parties view the period from November 2018 to March/April 2019 differently. The Applicant believed that their relationship was just going through yet another hiccup. It is the Respondent’s evidence that the relationship was over and that she conveyed this to the Applicant on a number of occasions, both verbally and by text. It is the Respondent’s evidence that whilst she and the Applicant still occasionally attended social events together, including a mutual friend’s wedding in 2019, it was as friends only as she was trying to maintain some kind of civility as they wound their relationship up.
In March 2019, the Applicant re-connected with her now-husband. That relationship accelerated very quickly and by April 2019 the Respondent decided that in order to pursue that relationship she was going to move to the USA, where her now-husband resides.
The Respondent placed the D Street, Suburb E property on the market for sale and moved to The USA in April 2019. D Street, Suburb E finally sold in or around November 2019 for $780,000. After discharging the mortgage and paying the outstanding rates and sale costs, the net proceeds of sale were $216,278.56. The Respondent retained the sale proceeds in their entirety.
At the time of the parties’ separation, the Applicant retained the business Company B, a motor vehicle and various chattels. The business ceased to operate subsequent to the parties’ separation.
On 6 February 2020, Judge Riley delivered judgment in relation to a Fair Work Application made by a former employee of Company B against C Pty Ltd and the Applicant in relation to underpayments of wages, a failure to provide payslips and adverse action for prohibited reasons in constructive dismissal.
In a 49-page judgment, Judge Riley found C Pty Ltd and the Applicant to be in breach of various sections of the Corporations Act 2001 (Cth) and the Fair Work Act 2009 (Cth). Her Honour found that the plaintiff in those proceedings had been underpaid wages, had not been paid for outstanding leave and had not been paid penalty rates for working on public holidays. The underpayment was approximately $11,500.
Because of the Applicant’s failure to participate in the proceedings, her Honour imposed quite serious penalties against the corporate structure and the Applicant personally for their breaches of the relevant Acts. In total, her Honour ordered that C Pty Ltd pay penalties of $239,500 and the Applicant personally pay $47,880 in addition to the underpayment.
Whilst the Applicant inferred that the proceedings before Judge Riley were caused by behaviour of the Respondent, the Respondent was removed as a party to the litigation on application by the plaintiff. The judgment delivered by Judge Riley exonerates the Respondent from any responsibility in relation to the application before her. I make reference to this judgment because of its relevance to the financial position of both parties and the arguments put forward by the Applicant in support of his application before this Court.
the law
Section 44(5) and section 44(6) of the Act are relevant for an application for leave to proceed out of time. Subsection 44(5) of the Act provides:
(5) Subject to subsection (6), a party to a de facto relationship may apply for an order under sections 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:
(a) the application is made within the period (the standard application period) of:
i. 2 years after the end of the de facto relationship; or
ii. 12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or
(b) both parties to the de facto relationship consent to the application.
Subsection 44(6) of the Act provides:
(6)The Court may grant the party leave to apply after the end of the standard application period if the Court is satisfied that:
(a)hardship would be caused to the party or a child if leave were not granted; or
(b)in the case of an application for an order for the maintenance of the party – the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
Subsection 44(6)(b) is not relevant to this application.
The law as to whether leave should be granted to initiate proceedings outside the standard application period is well-settled. The leading case, which has been cited with approval in most leave applications since it was decided is Whitford & Whitford [1979] FamCA 3 (“Whitford”). The Full Court held that on an application for leave under section 44(3) of the Act, or in this case section 44(6) of the Act, two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the Applicant if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises, whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings.
Thus, when determining an application for leave out of time, two questions arise. Firstly, is the Court satisfied hardship would be caused if leave were not granted? If the answer to this question is yes, then secondly, should the Court, in the exercise of its discretion, grant or refuse leave to institute proceedings?
Hardship
When discussing what constitutes hardship for the purposes of section 44 of the Act, May and Ainsley-Wallace JJ in Sharp & Sharp [2011] FamCAFC 150 (“Sharp”), held at paragraphs 17 to 21 as follows:
“It is well accepted that hardship for these purposes is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship. That is a matter to be determined by the circumstances of the particular case.
In assessing hardship in this context, the well-established test is that the applicant must have a prima facie claim worth pursuing or a “real” probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship. However, whether or not hardship exists is not to be assessed only by reason of the monetary value of the probable order to be made if leave were granted.
In considering the meaning of hardship, in Whitford at page 78,144 the Court said:
… The requirement, that the Court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the Court that the applicant would probably succeed, if the substantive application were heard on the merits. If there is no real probability of success, then the Court cannot be satisfied that hardship would be caused if leave were not granted… If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant or a child would suffer hardship if leave were not granted.
Further at page 78,145 the Court said:
… As a general proposition it might be said that the inability of an applicant to pursue a claim which in the circumstances of the applicant or a child of the marriage is trifling, generally will not cause hardship. Similarly, where the costs which the applicant will have to bear himself or herself are about as much or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted. But otherwise, we find no warrant in either subsec. 44(3) or 44(4) for saying that the right or entitlement lost must be a substantial one. (emphasis in original)
At the same page the Court continued:
In an appropriate case, and depending on the circumstances of the applicant or the children, hardship may be caused by the loss or deprivation of something which is of comparatively small money value…”
In Sharp, Young J considered the meaning of hardship in section 44 of the Act. His Honour held at paragraphs 128 to 135 as follows:
“In Whitford (supra) the Full Court at 78, 144 to 78, 145, in addition to the passages cited in the reasons of May and Ainslie-Wallace JJ above, specifically considered the meaning of hardship as stated in s 44(4)(a). The Full Court observed that:
In our view the meaning of “hardship” in subsec. 44(4) is akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment. Cf. the meanings assigned to “hardship” in the Shorter Oxford Dictionary and in Webster’s New International Dictionary. See also In the Marriage of Mackenzie (1978) FLC 90-496…
…
In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in subsection 44(4) the word should have its usual, though not necessarily it’s most stringent, connotations. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense.
Similarly, in Hall (supra) at 78, 627 the Full Court stated that the authorities:
… have considered what is meant by the term “hardship” in this context, and the term “substantial detriment” seems to be the generally accepted interpretation of that word.
It follows from the discussion in Whitford (supra) at 78,144, and Hall (supra) at 78,627, that in the context of s 44(4)(a) hardship has a broad meaning and, as identified by the majority, although the mere loss of a prospective entitlement to pursue a substantive claim may not of itself constitute hardship it is the consequences attending the loss of the right “with which the subsection is concerned”. However, in Whitford (supra) it is important to note that the Court observed at 78,145 that:
Hardship may be caused to an applicant if leave were not granted to institute proceedings, although the applicant is not in necessitous circumstances. Whatever the financial situation of an applicant may be, his or her loss of a prospective entitlement to property including money, or his or her inability to have the financial and property relations of the parties adjusted or resolved, may constitute hardship. In some cases, where a resolution of the property or financial relationships of the parties is desired, it might be, that the applicant would receive no more or even less, than he or she already owns at law or in equity. Nevertheless, hardship might be caused to the applicant if leave were not granted so as to facilitate such resolution…
From the observations in Whitford (supra) and Hall (supra), and in view of the recent authorities of the Full Court on the subject of hardship, it is apparent that an assessment of hardship requires the Court to consider whether the applicant would suffer a substantial detriment as a consequence of the loss of the right to institute the proceedings, although that detriment, in the circumstances of a particular matter, may not be entirely related to financial considerations. In my opinion, it is not possible nor desirable to define exhaustively what will, in all the circumstances of a particular application, constitute hardship for the purposes of s 44(4)(a). However, in undertaking the exercise the Court should have regard to the nature of the jurisdiction exercised by the Family Court and the power should be “exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within a year from the decree nisi” per Whitford (supra) at 78,146.
In undertaking an assessment of hardship the Court is required to consider whether the applicant has established a prima facie claim and in Hall (supra), at 78,627, the Full Court stated that:
Fundamental to a finding of hardship is a determination of the quality or character of the potential claim. In relation to that different cases have used somewhat different phrases to describe it so that it has become something of a matter of semantics to describe in different ways what is really the same basic concept. For example in Swallow’s case (unreported Emery J, 16 September 1977; referred to in McDonald’s case) it was said to be “a prima facie case which is in the circumstances substantial”; the Full Court in McDonald’s case differed from that by stating that it ought to be “a reasonable prima facie case”. In Mackenzie’s case it was described as being “a probability of success”, and in Whitford’s case the distinction was said to be that the applicant would need to show that she would “probably succeed” to be contrasted with a situation where she had “no real probability of success”. In Perkins’ case (1979) FLC 90-600 Lindenmayer J described it as “a reasonable probability of the claim being successful in some measure”.
These varying phrases may tend to suggest different shades of meaning whereas in reality they are directed to the same fundamental inquiry which basically is in the context whether on the applicant’s material he or she has a reasonable claim to be heard by the Court…
In Althaus (supra) at 77,267 the Full Court similarly observed that “the exercise is to determine whether there is a reasonable claim to be heard. That is the essence of the inquiry into whether hardship will be suffered by denying the applicant the right to litigate that claim.”
More recently in Hedley (supra) at paragraph 215, Cronin J cited the Full Court decision of Richardson (supra) at paragraph 14, in which Finn, Warnick and Boland JJ stated and affirmed the principles set out by the primary judge who observed that “it is not a decision about whether the claim will succeed but whether there is a reasonable claim to be heard”.
In my opinion, in undertaking a determination of whether the requisite hardship will be occasioned to the applicant under s 44(4)(a) what is required by the Court is an assessment of the asserted hardship, and in view of that hardship, a determination of whether the applicant has demonstrated that there is a reasonable claim to be heard. If the applicant has established that there is a reasonable claim to be heard and has demonstrated that she or he would suffer hardship in the form of a substantial detriment as a consequence of the loss of the right to institute the proceedings, then the statutory precondition in s 44(4)(a) will be satisfied and the Court may then consider whether in all the circumstances leave should be granted to allow the application under s 44(3) of the Act.”
In the decision of Welland & Hawthorn [2021] FedCFamC1A 43, the Full Court considered section 44(6) of the Act. At paragraph 16 their Honours cited with approval the Full Court decision of Arcand & Boen [2021] FamCAFC 155:
The Full Court recently had occasion to affirm that the application of s 44(6) of the Act entails satisfaction of its criteria by sequential steps (Arcand & Boen [2021] FamCAFC 155; FLC 94-046). First, the applicant must demonstrate hardship and, if that hurdle is surmounted, must still persuade the exercise of discretion in his or her favour to extend time. As the Full Court said:
The applicant bore the onus of demonstrating to the primary judge’s satisfaction that, supposing leave to bring the property settlement claim out of time was denied, the deprivation of his reasonable chance of success in those prospective proceedings would occasion him hardship (Gadzen & Simkin [2018] FamCAFC 219; (2018) FLC 93-871 (“Gadzen”) a [29]-[31]).
In assessing whether the applicant discharged the onus, the primary judge merely needed to be satisfied the prospective property settlement was reasonable or arguable, with such assessment made summarily without a detailed hearing on the merits (Gadzen at [33]–[37]; Edmunds & Edmunds [2018] FamCAFC 121; (2018) FLC 93-847 (“Edmunds”) at [16]–[17]; Althaus and Althaus (1982) FLC 91-233 (“Althaus”) at 77,267).
It is the argument of the Applicant that he has a reasonable and arguable case, and to deprive him of the opportunity to pursue his case would cause him considerable hardship.
It is the Applicant’s evidence that until March 2019, he was still making payments in relation to D Street, Suburb E. In March/April 2019 he made improvements to D Street, Suburb E by landscaping the front and back yard.
The Applicant argues that the Respondent was not working throughout the relationship, that he was the only one contributing financially to their relationship and that the lifestyle they enjoyed was a direct result of the contributions and payments made by the business conducted solely by him.
It is common ground that the parties lost approximately $200,000 during the course of the relationship as the result of a scam. It is my understanding that most of the money that was transferred by the Respondent to the Applicant from the redraw facility/her inheritance was lost through this scam. The Applicant argues that neither party is responsible for being defrauded by this criminal act. As such, the monies that were lost as a result of those criminal matters means that the contributions made by the Respondent arising from her inheritance have been considerably reduced.
The Applicant therefore argues he made a considerable and greater contribution to the parties and to D Street, Suburb E during the parties’ relationship because of the mortgage and other payments made by him, as well as to their general living expenses.
It is submitted on behalf of the Respondent that the Applicant does not have a reasonable or arguable case. It is submitted that the parties’ relationship was a short one of just over three years.
It is argued that at the commencement of the relationship the Respondent had assets of $480,000 being her inheritance and the Applicant had his business and motor vehicle.
It is the evidence of the Respondent that during the relationship that whilst the Applicant made some mortgage payments, he did not always do so. An examination of the mortgage statements for D Street, Suburb E show that during the relationship, the Applicant paid $29,941 in relation to mortgage payments. He missed payments totalling $35,339.03. It is the Respondent’s evidence she paid $12,800 from her own funds to appease the bank in relation to the arrears at various times during the relationship.
Whilst conceding that the Respondent made a greater initial contribution to the purchase of D Street, Suburb E and that she transferred considerable monies to his business, those contributions are greatly reduced because of the parties falling victim to a scam. Because of this and because of his greater financial contribution during the relationship, the Applicant therefore argues he has a reasonable and arguable case that he is entitled to a share of the net proceeds of sale of D Street, Suburb E.
It is the Respondent’s evidence that she did work during the relationship but concedes that she was not a high income earner. It is her evidence that she would assist the Applicant as best she could in relation to his business, although primarily it was his responsibility. The Applicant refutes that the Respondent did any work for his business despite claiming it was her behaviour that caused the Federal Circuit Court of Australia to enter the judgment against him and the business as referred to in paragraphs 24 to 27 herein.
It is submitted on behalf of the Respondent that at the conclusion of the parties’ relationship, the Applicant retained the assets owned by him at the commencement of the relationship, whilst the Respondent’s financial position was considerably worse having been reduced from $480,000 she had at the commencement of the relationship to the $216,000 that she received from the net proceeds of sale of D Street, Suburb E.
Further, it is the evidence of the Respondent that the monies received by her have now been spent to meet her living expenses and partly in payment of the legal costs that she has incurred as a result of these proceedings.
For these reasons, it is submitted on behalf of the Respondent that the Applicant has no reasonable or arguable case. This is because of the considerably greater contribution made by her to the purchase of D Street, Suburb E, that the mortgage payments made by the Applicant are exceeded by the payments he did not make so that the equity in the property was reduced and because the Applicant retained the assets he had at the commencement of the relationship, whereas the Respondent left the relationship in a significantly worse off position than she entered it in. Further, there are now no assets available to either party against which orders can be made.
I accept the evidence of the Respondent that she has spent the proceeds from the sale of D Street, Suburb E that she received upon settlement of its sale on her living expenses. Similarly, I accept that Company B is no more and that at this point in time the Applicant has no other assets, perhaps other than his motor vehicle. Because of this, there are no assets against which the Court can make orders.
conclusion
The Applicant argues that because he was responsible for the parties’ expenses and costs throughout the relationship, including the costs associated with D Street, Suburb E, he is entitled to a share of the proceeds of sale of D Street, Suburb E.
When considering the question of the contributions parties make during the course of a relationship, there is an expectation that they will each contribute to the best of their ability to their living expenses and that they will jointly make decisions in relation to the manner in which they live, including travel and other lifestyle choices. It is not unusual in relationships for there to be differences in earning capacities and for one party to contribute more to their expenses than the other party. That in and of itself does not justify a property settlement.
On the evidence before the Court it was the Applicant who was the victim of the scam which resulted in $200,000 of the parties’ funds being lost. A significant proportion of this money came from the money transferred to the Applicant and Company B by the Respondent from her inheritance. Whilst I am not inferring that the Applicant did anything wrong, this means in real terms that at the end of the parties’ relationship the Respondent was in a significantly worse financial position than she was at the commencement of the relationship. The equity in D Street, Suburb E was really all that remained of the Respondent’s inheritance.
When the relationship finished, the Applicant retained the assets he had at the commencement of the relationship, being Company B and his motor vehicle. His failure to resolve the relatively small claim for underpayment by the former employee of Company B resulted in legal proceedings being commenced. His subsequent failure to defend/participate in these proceedings resulted in significant penalties and damages being awarded against him and Company B. Because of this, the Applicant’s business has been lost.
The Court accepts the Respondent has now spent the proceeds of sale retained by her from the sale of D Street, Suburb E in 2019 on her reasonable living expenses.
For these reasons there are no assets against which any orders could be made.
Because of the significantly greater contribution made by the Respondent to the purchase of D Street, Suburb E, the in excess of $250,000 of her inheritance transferred by the Respondent to the Applicant and/or Company B of which up to $200,000 was lost to a scam the Applicant was a victim of, that the mortgage payments made by the Applicant during the relationship were exceeded by the mortgage payments he did not make and because there are now no assets against which this Court could make orders, I am of the view that the Applicant does not have a reasonable and arguable case and therefore he is unable to establish that he would suffer hardship in the event I do not accede to his application to grant leave. The application for leave to institute proceedings out of time is therefore dismissed.
Given the finding that the Applicant will not suffer hardship if he is not granted leave to bring an application for property settlement out of time, it is unnecessary to consider whether the Court would have exercised its discretion to grant leave in the event it had not so found. However, if I had found hardship, I still would not have been persuaded to exercise my discretion to grant leave.
Whilst I am more than satisfied that the Applicant did everything reasonable to bring the application in a timely manner so the question of delay is not relevant, the hardship to the Respondent if leave was not granted would not justify the application proceeding. This is because there are no assets against which I can make an order. Further, the Respondent has already incurred considerable costs in the proceedings to date. If the matter were to proceed beyond today, the reasonable costs that would be incurred cannot in any way be justified by the reality there are no assets against which any orders can be made.
For these reasons I will make an order that the application for leave to proceed out of time, pursuant to section 44(6) of the Act be dismissed and the matter be removed from the list of cases requiring any further determination of the Court.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender. Associate:
Dated: 4 November 2022
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