HF v SJ - [2011] QDC 96

DISTRICT COURT OF QUEENSLAND

CITATION:

HF v SJ [2011] QDC 96

PARTIES:

HF
(Applicant)

V

SJ
(Respondent)

FILE NO/S:

D21 of 2006

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for Property Adjustment Orders

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

Primary order 6.5.11

Submissions in relation to costs received 12.5.11 (applicant); and 3.6.11(respondent)

Costs order: 7.6.11

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

27 April 2011

JUDGE:

Robertson DCJ

ORDER:

Primary Order

1.   The respondent be paid the sum of $15000 from the investment account containing monies received from sale of property and the applicant receive the balance

2.   The respondent pay the applicant’s costs of and incidental to the application filed 2.11.10 on the standard basis

Orders made 7.6.11

1.   The respondent pay the applicant’s costs of and incidental to the proceedings assessed on the indemnity basis from 26.11.08.

2.   The $15000 referred to in the orders made 6.5.11 be retained in the investment account pending assessment of costs pursuant to orders made today and on 6.5.11. The balance of the investment account be paid to the trust account of the solicitors for the applicant for disbursement to her.

3.   I direct that upon assessment of costs (to be done within a reasonable time) and in the absence of any dispute or appeal, the sum of $15000 (or part thereof) be applied in payment of such costs and the balance be paid forthwith to the respondent.

4.   Liberty to apply by the giving of (7) days written notice

CATCHWORDS:

DE FACTO RELATIONSHIP- PROPERTY SETTLEMENT- Adjustment of property interests- where the parties ended a de facto relationship- where the parties purchased two properties during their 18 year relationship- where the pool of assets now available for distribution comprises cash only, being the proceeds of sale of one property - where the applicant’s seeks a Property Adjustment Order pursuant to part 19 of the Property Law Act 1974 (Qld)- where the applicant’s financial contribution was substantially greater at the commencement and during the relationship

COSTS- where applicant had made (4) offers to settle from 26.11.08 which were substantially greater than the monies received by the respondent pursuant to the order made 6.5.11; whether discretion to award costs pursuant to s 341(2) of the Property Law Act 1974 (Qld) is enlivened; whether exceptional circumstances exist to justify costs on an indemnity basis.

Legislation

Property Law Act 1974 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Cases

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

FO v HAF [2006] QCA 555

GAJ v RAJ [2011] QCA 65

Hickey v Hickey [2003] FLC 93-143

Yunghanns v Yunghanns [2000] FLC 93-029; [2000] 26 Fam LR 331

COUNSEL:

Mr G. Wildie for the plaintiff

Respondent, self- represented (appearance by phone)

SOLICITORS:

Baldwin Cartwright for the plaintiff

Robertson Hyetts Solicitors for the respondent for costs orders only

The applicant seeks Property Adjustment Orders pursuant to Part 19 of the Property Law Act1974 (Qld). She and the respondent lived together on a “genuine domestic basis” from…

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 HF v SJ

Details

AGLC: HF v SJ [2011] QDC 96
Case: [2011] QDC 96
Decision Date: 07/06/2011

CaseChat Overview and Summary

The parties to this case are HF and SJ, who were in a de facto relationship for 18 years. The dispute revolves around the division of property acquired during their relationship and the appropriate allocation of costs in the proceedings. The case was heard in the Queensland Family Court. The primary issue before the court was whether the applicant was entitled to a Property Adjustment Order under the Property Law Act 1974 (Qld), given her greater financial contribution to the relationship. The court also had to decide whether the applicant was entitled to costs on an indemnity basis in light of the respondent's acceptance of sums significantly less than what was initially offered by the applicant.

The court found that the applicant's financial contributions were substantially greater than those of the respondent, both at the beginning and throughout the duration of their relationship. The court concluded that the applicant was entitled to a Property Adjustment Order. The court further considered the issue of costs, noting the applicant's four offers to settle which were substantially higher than the sums received by the respondent pursuant to the earlier orders. The court concluded that the discretion to award costs on an indemnity basis was indeed triggered under section 341(2) of the Property Law Act 1974 (Qld), due to the exceptional circumstances presented by the applicant's offers and the respondent's acceptance of significantly lower sums.

In its final orders, the court directed that the respondent pay $15,000 from the investment account to the applicant, with the balance to be paid to the applicant. The court also ordered that the respondent pay the applicant's costs of and incidental to the proceedings on an indemnity basis, from the date of the first offer to settle. Additionally, the court directed that the $15,000 referred to in the earlier orders be retained pending the assessment of costs and that upon assessment, the sum of $15,000 (or part thereof) be applied in payment of those costs, with the balance paid to the respondent.

Orders

Orders of the court

Primary Order

1. The respondent be paid the sum of $15000 from the investment account containing monies received from sale of property and the applicant receive the balance

2. The respondent pay the applicant’s costs of and incidental to the application filed 2.11.10 on the standard basis

Orders made 7.6.11

1. The respondent pay the applicant’s costs of and incidental to the proceedings assessed on the indemnity basis from 26.11.08.

2. The $15000 referred to in the orders made 6.5.11 be retained in the investment account pending assessment of costs pursuant to orders made today and on 6.5.11. The balance of the investment account be paid to the trust account of the solicitors for the applicant for disbursement to her.

3. I direct that upon assessment of costs (to be done within a reasonable time) and in the absence of any dispute or appeal, the sum of $15000 (or part thereof) be applied in payment of such costs and the balance be paid forthwith to the respondent.

4. Liberty to apply by the giving of (7) days written notice

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:	HF v SJ [2011] QDC 96
PARTIES:	HF (Applicant) V SJ (Respondent)
FILE NO/S:	D21 of 2006
DIVISION:	Civil Jurisdiction
PROCEEDING:	Application for Property Adjustment Orders
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	Primary order 6.5.11 Submissions in relation to costs received 12.5.11 (applicant); and 3.6.11(respondent) Costs order: 7.6.11
DELIVERED AT:	District Court at Maroochydore
HEARING DATE:	27 April 2011
JUDGE:	Robertson DCJ
ORDER:	Primary Order 1. The respondent be paid the sum of $15000 from the investment account containing monies received from sale of property and the applicant receive the balance 2. The respondent pay the applicant’s costs of and incidental to the application filed 2.11.10 on the standard basis Orders made 7.6.11 1. The respondent pay the applicant’s costs of and incidental to the proceedings assessed on the indemnity basis from 26.11.08. 2. The $15000 referred to in the orders made 6.5.11 be retained in the investment account pending assessment of costs pursuant to orders made today and on 6.5.11. The balance of the investment account be paid to the trust account of the solicitors for the applicant for disbursement to her. 3. I direct that upon assessment of costs (to be done within a reasonable time) and in the absence of any dispute or appeal, the sum of $15000 (or part thereof) be applied in payment of such costs and the balance be paid forthwith to the respondent. 4. Liberty to apply by the giving of (7) days written notice
CATCHWORDS:	DE FACTO RELATIONSHIP- PROPERTY SETTLEMENT- Adjustment of property interests- where the parties ended a de facto relationship- where the parties purchased two properties during their 18 year relationship- where the pool of assets now available for distribution comprises cash only, being the proceeds of sale of one property - where the applicant’s seeks a Property Adjustment Order pursuant to part 19 of the Property Law Act 1974 (Qld)- where the applicant’s financial contribution was substantially greater at the commencement and during the relationship COSTS- where applicant had made (4) offers to settle from 26.11.08 which were substantially greater than the monies received by the respondent pursuant to the order made 6.5.11; whether discretion to award costs pursuant to s 341(2) of the Property Law Act 1974 (Qld) is enlivened; whether exceptional circumstances exist to justify costs on an indemnity basis. Legislation Property Law Act 1974 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Cases Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 FO v HAF [2006] QCA 555 GAJ v RAJ [2011] QCA 65 Hickey v Hickey [2003] FLC 93-143 Yunghanns v Yunghanns [2000] FLC 93-029; [2000] 26 Fam LR 331
COUNSEL:	Mr G. Wildie for the plaintiff Respondent, self- represented (appearance by phone)
SOLICITORS:	Baldwin Cartwright for the plaintiff Robertson Hyetts Solicitors for the respondent for costs orders only