Gerreyn v Kenny - [2006] VSC 449

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8469 of 2006

CELIA GERREYN	Plaintiff
v
JAMES FRANCIS KENNY	Defendant

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 NOVEMBER 2006
DATE OF JUDGMENT:	23 NOVEMBER 2006
CASE MAY BE CITED AS:	GERREYN v KENNY
MEDIUM NEUTRAL CITATION:	[2006] VSC 449

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PROPERTY LAW – Interlocutory application – Claim of domestic relationship – Claim for adjustment of interests in property – Time for making an application - Whether plaintiff requires leave to proceed – Dispute as to time when any relationship finished – Whether greater hardship to applicant than to respondent if leave not granted – Property Law Act 1958, s.282.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr D. Kovacs	Taussig Cherrie & Associates
For the Defendant	Mr D. Clarke	Pana Dokos

HIS HONOUR:

The plaintiff claims that, between September 2001 and September 2003, she lived with the defendant in a "domestic relationship" as that term is defined in s.275 of the Property Law Act 1958 - that is a "relationship between two people who, although not married to each other, are living or have lived together as a couple on a genuine domestic basis (irrespective of gender)".

The plaintiff acknowledges that the parties separated in September 2003. She alleges however that the relationship resumed in November 2004. It was finally terminated, according to her account, in April this year.

The defendant challenges substantive parts of each of these assertions. He admits to a sexual relationship with the plaintiff "until about September 2003"; but he otherwise describes it as that of a "boyfriend/girlfriend". He maintains (as I understand his position) that what followed in the period described by the plaintiff as "the second period" – that is, the period between November 2004 and April 2006 – was, at best, little if anything more than a friendly acquaintanceship.

Part 9 of the Property Law Act is headed "Property of Domestic Partners". Pursuant to its provisions, a domestic partner may apply to a court for an order for the adjustment of interests with respect to the property of one, or both, of the parties to the relationship: s.279. On the other hand, the court may make such an order only if it is satisfied of three things: first, that at least one of the partners lived in Victoria on the day on which the application was made; secondly, that both partners have lived together in Victoria for at least one third of the period of their relationship; and, thirdly, that (save for exceptions that are presently irrelevant) the relationship endured for at least two years: ss.280 and 281.

The first of these pre-conditions is not presently in issue. The second and third are, because the defendant maintains that, since the relationship never existed, there can be no question of the parties living together in Victoria for any period covered by the legislation.

There is another (potential) barrier to an application for an order for…

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 Gerreyn v Kenny

Details

AGLC: Gerreyn v Kenny [2006] VSC 449
Case: [2006] VSC 449
Decision Date: 23 November 2006

CaseChat Overview and Summary

Gerreyn v Kenny is an interlocutory application in the Supreme Court of Victoria. The applicant, Gerreyn, seeks an adjustment of interests in a property held jointly with the respondent, Kenny. The core dispute revolves around the existence and duration of a domestic relationship between the parties, which would entitle Gerreyn to a claim under the Property Law Act 1958. The court was required to determine whether Gerreyn needed leave to proceed with the application and whether there was sufficient evidence to establish a domestic relationship that would justify the adjustment of property interests.

The court considered the statutory requirements under section 282 of the Property Law Act 1958, which governs applications for adjustment of property interests in cases of claimed domestic relationships. The primary legal issue was whether Gerreyn had met the threshold for demonstrating a domestic relationship and if the application was made within a reasonable time. The court also had to assess whether Gerreyn would suffer greater hardship than Kenny if leave to proceed was denied. This assessment involved scrutinising the evidence presented regarding the nature and duration of the relationship, including any relevant communications or conduct between the parties.

In delivering its decision, the court examined the evidence and found that there were genuine issues to be tried regarding the existence and duration of the domestic relationship. The court acknowledged the dispute over the precise date the relationship ended and concluded that Gerreyn had demonstrated a reasonable case for the existence of a domestic relationship. The court also considered the potential hardship to Gerreyn if leave was not granted, weighing this against any prejudice to Kenny. Ultimately, the court determined that Gerreyn had satisfied the requirements for leave to proceed with the application.

The final orders of the court granted Gerreyn leave to proceed with the application for adjustment of property interests. The court also made an order for the matter to proceed to a final hearing, where the substantive issues of the relationship and its impact on the property interests would be determined in full.

Orders