FLC v AJO (No 2) - [2013] QSC 103

SUPREME COURT OF QUEENSLAND

CITATION:

FLC v AJO (No 2) [2013] QSC 103

PARTIES:

FLC (applicant)

v

AJO (first respondent)

AJO as trustee (second respondent)

FILE NO/S:

31 of 2006

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

23 April 2013

DELIVERED AT:

Cairns

HEARING DATE:

26, 27 July 2012, 7, 8 November 2012, 10, 11 December 2012

JUDGE:

Henry J

ORDER:

1. The respondent pay to the applicant the sum of $7,735.30 by way of property adjustment pursuant to Pt 19 Property Law Act 1974 (Qld).

2. That amount is to be paid by 23 July 2013.

3. If the respondent fails to make the payment in full referred to in order 1, unless the parties agree otherwise in writing, the property situated at Edgar St, Bungalow, described as Lot 35 on Registered Plan 709521, County of Nares, Parish of Cairns, Title Reference 20374115 (“the property”) is to vest in a trustee to be agreed by the parties, or, failing agreement, a trustee nominated by the President of the Queensland Law Society, to sell the property.

4. The trustee shall distribute from the net proceeds of sale the costs of the trustee, $7,735.30 to the applicant and the balance to the respondent.

5. Pending the payment referred to in order 1, the respondent is restrained from encumbering the property without the written consent of the applicant, other than for the purpose of raising sufficient money to make the payment.

6. The parties otherwise retain their respective real and personal property free of all claims from each other.

7. Liberty to apply on the giving of two days notice in writing on the form of order and as to costs.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – GENERALLY - where the applicant seeks a Property Adjustment Order pursuant to Part 19 of the Property Law Act 1974 (Qld) – where there was a lengthy de facto relationship – where the respondent made substantial contributions to the pool of assets during the relationship – where the applicant claims that he also made substantial financial and non-financial contributions during the relationship - consideration of the matters relevant to deciding what is just and equitable in making the property adjustment order

Acts Interpretations Act 1954 (Qld)

Child Support (Assessment) Act 1989 (Cth)

Property Law Act 1974 (Qld) Pt 19

Challen v Challen [2007] Fam CA 1292

FO V HAF [2006] QCA 555

COUNSEL:

Applicant for himself

First Respondent for herself and the Second Respondent

SOLICITORS:

-

The applicant applies for a property adjustment order against the respondents under Pt 19 of the Property Law Act 1974 (Qld) (“PLA”).[1]
[1]The second named respondent was included incorrectly. References herein to the respondent are references to the first respondent.

Threshold issues in this application were whether there has been a de facto relationship and whether leave should be given for the application to proceed if it was brought out of time.

Those…

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 FLC v AJO (No 2)

Details

AGLC: FLC v AJO (No 2) [2013] QSC 103
Case: [2013] QSC 103
Decision Date: 23 April 2013

CaseChat Overview and Summary

In the case of FLC v AJO (No 2), the applicant, FLC, sought a Property Adjustment Order under Part 19 of the Property Law Act 1974 (Qld), following the end of a lengthy de facto relationship with the respondent, AJO. FLC contended that AJO had made substantial contributions to the pool of assets during the relationship, but that he had also made significant financial and non-financial contributions. The central issue before the court was to determine what is just and equitable in making the property adjustment order, taking into account the contributions of both parties.

The legal issues the court had to decide included the nature and extent of the contributions made by both parties to the relationship and the pool of assets, the duration of the relationship, and the principles that should guide the court in making a just and equitable property adjustment order. The court considered various factors, such as the length and nature of the relationship, the contributions made by both parties, and the overall fairness and justice of the outcome.

In reaching its decision, the court held that AJO should pay FLC the sum of $7,735.30 by way of property adjustment. The court also ordered that if AJO failed to make the payment in full by the specified date, the property situated at Edgar St, Bungalow, would vest in a trustee to be agreed by the parties, or, failing agreement, a trustee nominated by the President of the Queensland Law Society. The trustee would then sell the property and distribute the net proceeds, deducting costs and paying the amount owed to FLC. The court further restrained AJO from encumbering the property without the written consent of FLC, pending the payment.

The final orders included the payment of $7,735.30 to FLC by AJO by 23 July 2013, the vesting of the property in a trustee and the distribution of the net proceeds if the payment was not made, and the restraint on AJO from encumbering the property without FLC's written consent. The parties were otherwise to retain their respective real and personal property free of all claims from each other. The court also granted liberty to apply on the giving of two days notice in writing on the form of order and as to costs.

Orders

Orders of the court

1. The respondent pay to the applicant the sum of $7,735.30 by way of property adjustment pursuant to Pt 19 Property Law Act 1974 (Qld).

2. That amount is to be paid by 23 July 2013.

3. If the respondent fails to make the payment in full referred to in order 1, unless the parties agree otherwise in writing, the property situated at Edgar St, Bungalow, described as Lot 35 on Registered Plan 709521, County of Nares, Parish of Cairns, Title Reference 20374115 (“the property”) is to vest in a trustee to be agreed by the parties, or, failing agreement, a trustee nominated by the President of the Queensland Law Society, to sell the property.

4. The trustee shall distribute from the net proceeds of sale the costs of the trustee, $7,735.30 to the applicant and the balance to the respondent.

5. Pending the payment referred to in order 1, the respondent is restrained from encumbering the property without the written consent of the applicant, other than for the purpose of raising sufficient money to make the payment.

6. The parties otherwise retain their respective real and personal property free of all claims from each other.

7. Liberty to apply on the giving of two days notice in writing on the form of order and as to costs.

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

Full text does not contain this section.

CITATION:	FLC v AJO (No 2) [2013] QSC 103
PARTIES:	FLC (applicant) v AJO (first respondent) AJO as trustee (second respondent)
FILE NO/S:	31 of 2006
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	23 April 2013
DELIVERED AT:	Cairns
HEARING DATE:	26, 27 July 2012, 7, 8 November 2012, 10, 11 December 2012
JUDGE:	Henry J
ORDER:	*1. The respondent pay to the applicant the sum of $7,735.30 by way of property adjustment pursuant to Pt 19 Property Law Act 1974* (Qld). 2. That amount is to be paid by 23 July 2013. 3. If the respondent fails to make the payment in full referred to in order 1, unless the parties agree otherwise in writing, the property situated at Edgar St, Bungalow, described as Lot 35 on Registered Plan 709521, County of Nares, Parish of Cairns, Title Reference 20374115 (“the property”) is to vest in a trustee to be agreed by the parties, or, failing agreement, a trustee nominated by the President of the Queensland Law Society, to sell the property. 4. The trustee shall distribute from the net proceeds of sale the costs of the trustee, $7,735.30 to the applicant and the balance to the respondent. 5. Pending the payment referred to in order 1, the respondent is restrained from encumbering the property without the written consent of the applicant, other than for the purpose of raising sufficient money to make the payment. 6. The parties otherwise retain their respective real and personal property free of all claims from each other. 7. Liberty to apply on the giving of two days notice in writing on the form of order and as to costs.**
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – GENERALLY - where the applicant seeks a Property Adjustment Order pursuant to Part 19 of the Property Law Act 1974 (Qld) – where there was a lengthy de facto relationship – where the respondent made substantial contributions to the pool of assets during the relationship – where the applicant claims that he also made substantial financial and non-financial contributions during the relationship - consideration of the matters relevant to deciding what is just and equitable in making the property adjustment order Acts Interpretations Act 1954 (Qld) Child Support (Assessment) Act 1989 (Cth) Property Law Act 1974 (Qld) Pt 19 Challen v Challen [2007] Fam CA 1292 FO V HAF [2006] QCA 555
COUNSEL:	Applicant for himself First Respondent for herself and the Second Respondent
SOLICITORS:	-