Henry v Ford (No. 2) - [2009] NSWSC 1254

CITATION: Henry v Ford (No. 2) [2009] NSWSC 1254

HEARING DATE(S): 30 October 2009

JUDGMENT DATE :
30 October 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 30 October 2009

DECISION: Refer to paras 23 and 25 of judgment.

CATCHWORDS: PROCEDURE - Application for leave to make an application to adjust property interests pursuant to Property (Relationships) Act 1984 – statement of claim filed almost eight years after termination of de facto relationship and almost four years after settlement agreement made – greater hardship would be caused to defendant if leave given than would be caused to plaintiff if leave refused – application dismissed

LEGISLATION CITED: Property (Relationships) Act 1984 (NSW)
Contracts Review Act 1980 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Ford v Henry [2009] NSWSC 147; (2009) 41 Fam LR 1
Selmore v Bull [2005] NSWCA 365; (2005) 34 Fam LR 488
Beavan v Fallshaw (1992) 15 Fam LR 686

PARTIES: Plaintiff: George Francis Henry
Defendant: Debra Anne Ford

FILE NUMBER(S): SC 3148/09

COUNSEL: Plaintiff: T Hodgson
Defendant: T J Morahan

SOLICITORS: Plaintiff: Nicholl & Co
Defendant: Hozack Clisdell Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 30 October 2009

3148/09 George Francis Henry v Debra Anne Ford (No. 2)

JUDGMENT

1 HIS HONOUR: By statement of claim filed 10 June 2009 the plaintiff claims, amongst other relief, leave pursuant to s 18(2) of the Property (Relationships) Act 1984 (NSW) to make an application to adjust the property interests of the plaintiff pursuant to that Act. The only substantive relief sought in the statement of claim is an order pursuant to s 20 of that Act. The plaintiff pleads that the parties were in a de facto relationship. He pleads that they separated in about August 2001. Hence the statement of claim is filed almost eight years after the termination of the de facto relationship. There is a suggestion that the relationship may have continued until some time in 2002 but, on any view, there has been a long delay before these proceedings were commenced.

2 On 2 September 2005 the parties entered into a settlement agreement. They agreed they would consent to orders that the former matrimonial home at Jeremadra be sold at a price agreed upon by the parties, or, failing agreement, established by a selling agent appointed by the Real Estate Institute. They agreed that, upon sale, the net proceeds should be divided 60 percent to the plaintiff and 40 percent to the defendant. They agreed it should be otherwise declared that the parties were solely entitled to all other real estate and certain other identified property in their respective possession at the date of the separation.

3 They agreed to execute all documents to effect a listing of the Jeremadra property for sale and sign all contracts transfers and the like to facilitate the sale. Clause 5 provided that both parties acknowledged that this was a settlement pursuant to the Property…

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 Henry v Ford (No. 2)

Details

AGLC: Henry v Ford (No. 2) [2009] NSWSC 1254
Case: [2009] NSWSC 1254
Decision Date: 30 October 2009

CaseChat Overview and Summary

The proceedings in Henry v Ford involved the plaintiff, Henry, seeking leave to make an application to adjust property interests under the Property (Relationships) Act 1984. This was in relation to a de facto relationship with the defendant, Ford, which had terminated almost eight years prior to the filing of the statement of claim. The claim was made almost four years after a settlement agreement was reached between the parties. The primary focus of the application was on the adjustment of property interests that were previously settled.

The legal issues before the court centred on whether the significant delay in filing the claim and the settlement agreement should affect the granting of leave to adjust the property interests. Key considerations included the potential hardship to both parties if leave were granted, and the principle that courts should not permit applications that would result in greater hardship to the defendant than would be caused to the plaintiff if leave were refused.

The court dismissed the application, reasoning that the greater hardship to the defendant if leave were granted outweighed any potential benefit to the plaintiff. The delay in filing the claim and the existence of the settlement agreement were critical factors in this decision. The court emphasised that it was not in the interests of justice to allow an application that would cause disproportionate hardship to the defendant. Consequently, the application for leave to make an application to adjust property interests was dismissed.

Orders