SUPREME COURT OF QUEENSLAND
CITATION:
GAJ v RAJ [2011] QCA 65
PARTIES:
GAJ
(appellant)
v
RAJ
(respondent)FILE NO/S:
Appeal No 7019 of 2010
DC No 609 of 2008DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
12 April 2011
DELIVERED AT:
Brisbane
HEARING DATE:
9 November 2010
JUDGES:
Holmes and White JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
1.Appeal allowed.
2.The orders made in the District Court on 16 June 2010 be set aside and in lieu thereof there be substituted the following orders:
2.1The respondent retain for his benefit absolutely all assets in his possession, power or control including:
(i)the furniture in his possession;
(ii)his motor vehicle;
(iii)his boat, if any;
(iv)his tools; and
(v)his caravan.
2.2The appellant retain for her benefit absolutely all assets in her possession, power or control including:
(i)the furniture in her possession;
(ii)any money in her bank accounts;
and
(iii)her motor vehicle.
2.3The appellant pay to the respondent the sum of $82,000 by way of property adjustment pursuant to Pt 19 of the Property Law Act 1974 (Qld).
2.4That amount to be paid within 90 days of the delivery of judgment.
2.5If the appellant fails to make the payment in full referred to in order 2.3, unless the parties agree otherwise in writing, the property situated at 1/14 Red Gum Court, Pialba described as Lot 1 on SP 204432 in the County of Marsh, Parish of Urangan vest in a trustee to be agreed by the parties, or, failing agreement, as ordered by the court on a statutory trust for sale.
2.6The trustee shall distribute from the net proceeds of sale the costs of the trustee, $82,000 to the respondent and the balance to the appellant.
3.The parties to provide submissions about costs in writing within 14 days of judgment.
4. Liberty to apply on the form of order.
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – GENERALLY – where the appellant and respondent were in a de facto relationship – where the respondent applied under Pt 19 of the Property Law Act 1974 (Qld) for a property adjustment order – where the appellant challenged the primary judge’s property adjustment orders – whether the primary judge erred in considering initial financial contributions to property – whether the primary judge erred in the apportionment of the property pool – whether the learned primary judge erred in the exercise of discretion in making property adjustment orders
Family Law Act 1975 (Cth), s 79
Property Law Act 1974 (Qld), Pt 19, s 282(1), s 283, s 286, s 291, s 295, s 296, s 297-s 309Burgess v King (2005) 64 NSWLR 293; [2005] NSWCA 396, cited
Cabbell v Cabbell [2009] FamCAFC 205, cited
Davut v Raif [1994] FLC 92-503, cited
Elias and Elias (1977) 29 FLR 393; (1977) FLC 90-267,…
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- AGLC
- GAJ v RAJ [2011] QCA 65
- Case
- [2011] QCA 65
- Decision Date
CaseChat Overview and Summary
The court examined whether the primary judge appropriately assessed the initial contributions made by each party to the property. It was also necessary to determine if the apportionment of the property pool between the parties was correct and whether the primary judge exercised the discretion appropriately in making property adjustment orders. The court found that the primary judge had erred in the assessment of the initial contributions and the apportionment of the property pool. The court determined that the primary judge had not adequately considered all the relevant factors, including the non-financial contributions of the parties.
Consequently, the court allowed the appeal and set aside the orders made by the primary judge. Instead, the court ordered that the respondent retain certain assets, and the appellant retain other assets, with the appellant paying the respondent $82,000 within 90 days. If the payment was not made, the property at 1/14 Red Gum Court, Pialba would vest in a trustee for sale, and the net proceeds would be distributed accordingly. The parties were also directed to submit written submissions on costs within 14 days of the judgment.
Orders
Orders of the court
1.Appeal allowed.
2.The orders made in the District Court on 16 June 2010 be set aside and in lieu thereof there be substituted the following orders:
2.1The respondent retain for his benefit absolutely all assets in his possession, power or control including:
(i)the furniture in his possession;
(ii)his motor vehicle;
(iii)his boat, if any;
(iv)his tools; and
(v)his caravan.
2.2The appellant retain for her benefit absolutely all assets in her possession, power or control including:
(i)the furniture in her possession;
(ii)any money in her bank accounts;
and
(iii)her motor vehicle.
2.3The appellant pay to the respondent the sum of $82,000 by way of property adjustment pursuant to Pt 19 of the Property Law Act 1974 (Qld).
2.4That amount to be paid within 90 days of the delivery of judgment.
2.5If the appellant fails to make the payment in full referred to in order 2.3, unless the parties agree otherwise in writing, the property situated at 1/14 Red Gum Court, Pialba described as Lot 1 on SP 204432 in the County of Marsh, Parish of Urangan vest in a trustee to be agreed by the parties, or, failing agreement, as ordered by the court on a statutory trust for sale.
2.6The trustee shall distribute from the net proceeds of sale the costs of the trustee, $82,000 to the respondent and the balance to the appellant.
3.The parties to provide submissions about costs in writing within 14 days of judgment.
4. Liberty to apply on the form of order.
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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