H v M - [2005] QDC 283

[2005] QDC 283

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD 2891 of 2005

H	Applicant
and
M	Respondent

BRISBANE

..DATE 23/08/2005

ORDER

CATCHWORDS: Property Law Act 1974 s 38, s 286, s 288(1) - former de facto partners fail to resolve property dispute by agreement - eventually husband applies for order under s 38 for sale of jointly owned residence, now occupied by wife - she seeks leave to make application under part 19 of the Act, admittedly being out of time - husband asserts the delay is
years longer - insufficient evidence before the court on that issue or on "hardship" trustees for sale appointed on basis that no contract of sale be signed by them until after the hearing (set for fixed date) of the leave application.

HIS HONOUR: This has been a difficult application or pair of applications for the Court to resolve. That is often the case when litigation occurs between ordinary citizens who may be even worse off than the average member of the community; there is an imperative to try to achieve justice according to law without imposing onerous costs burdens which can be particularly concerning.

The applicant is seeking an order under section 38(1) of the Property Law Act 1974 for appointment of trustees on the statutory trust for sale of a residential property of which the parties (he and the respondent) are joint tenants.

The respondent's affidavit tells me that she is part Aboriginal, the applicant part Maori. They have five children together whose ages range from 11 to 16. The younger two live with the respondent. The others with the applicant although it is said that the oldest is pretty well independent and may not really be in that category.

The respondent says she is 41, the applicant 37. He runs a business which I understand to be in the concreting field. The respondent says she has, in the past, assisted the applicant in his business and other businesses and says that she is without skills to qualify her for employment at the moment. It will be convenient to refer to them as the husband and the wife from time to time to preserve confidentiality.

The mortgagee of the property is an entity associated with ATSIC. The mortgage debt is of the order of $117,000 which has been essentially unchanged since the outset with the applicant meeting mortgage repayments. Fortunately, the value of the property has increased. The wife suggests it is about $200,000, the husband somewhere in the range of $220,000 to $240,000. He brings his application against a background of being pursued by the revenue authorities in respect of his personal tax and business activity statement liabilities aggregating approximately $91,000.

He also says he has a child support liability of approximately $17,600 which presumably relates to the children the respondent cares for. I am told from the Bar table that it would seem to be the case that he and the children with him reside in rented…

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 H v M

Details

AGLC: H v M [2005] QDC 283
Case: [2005] QDC 283
Decision Date: 23/08/2005

CaseChat Overview and Summary

The case of H v M involved a dispute between former de facto partners over the sale of a jointly owned property. The applicant, H, sought an order under section 38 of the Property Law Act 1974 for the appointment of trustees for the sale of the property, which was currently occupied by the respondent, M. M sought leave to make an application under Part 19 of the Act, despite being out of time, and argued that hardship would result if she were forced out of her home. The central legal issues were whether M's application was made within the statutory time limit, and if not, whether leave should be granted under section 288(1)(b) of the Act due to hardship. The Court found that there was insufficient evidence to determine whether M's application was within the time limit or whether hardship would result if leave were not granted. Consequently, the Court appointed trustees for the sale of the property but deferred the signing of any sale contract until after the hearing of M's application for leave on 16 September 2005. The Court also scheduled a day in civil sittings on 16 September 2005 to determine the date when the parties' de facto relationship ended. The Court emphasised the importance of resolving the matter expeditiously and considered the possibility of dispute resolution methods such as mediation.

The Court's reasoning was based on the need to balance the equities between the parties and ensure that justice was achieved without imposing excessive costs burdens. The Court recognised the importance of resolving property disputes between former de facto partners in a fair and efficient manner, particularly when the parties were already in straitened circumstances. The Court also highlighted the need to adhere to statutory time limits and the importance of determining the date when the de facto relationship ended, as this could impact the outcome of the case. The Court's orders reflected its intention to facilitate a sale of the property while also allowing M an opportunity to argue for leave to make her application out of time due to hardship. The Court's decision demonstrates the importance of considering the unique circumstances of each case and striving to achieve a just outcome for both parties.

Orders