HMJ v PES - [2012] QSC 119

[2012] QSC 119

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No 6645 of 2008

HMJ	Applicant
and
PES	Respondent

BRISBANE

..DATE 19/04/2012

JUDGMENT

HER HONOUR: This matter comes before the Court for the

hearing of an originating application for property adjustment

orders pursuant to Part 19 of the Property Law Act 1994.

The applicant appeared represented by a solicitor and counsel.

The respondent did not appear. I am satisfied that the

respondent was served with notice of today's hearing and that

his appearance has not been excused. I am so satisfied

because an order was made on 24 January 2012 dispensing with

the requirement for his signature on the Request For Trial Date and ordering that he be given notification of the trial dates at his last known residential and postal address.

An affidavit from the solicitors for the applicant shows that

he was served in accordance with that notice in ample time for

him to be present at this hearing. His nonappearance

unfortunately is consistent with his behaviour throughout

these proceedings.

The proceeding commenced a very long time ago with the filing

of the originating application on 14 July 2008 to

which I have already referred. It was accompanied by an

affidavit of the applicant setting out the circumstances which

give rise to the jurisdiction of this Court under Part 19 of

the Property Law Act and setting out what she knew of the

contributions made by the parties and the asset pool of the

parties. She also filed a Statement of Financial

Circumstances.

An order was made by consent by the Deputy Registrar on 15 August 2008 which provided inter alia that the respondent file and serve his statement and affidavit material in accordance with paragraph 12 of District Court Practice Direction 5 of 2004, and made other orders including an order for mediation.

As I have said, those orders were made by consent.

Nevertheless, the respondent has failed absolutely to comply

with all of those orders. He has not provided any material as

to his financial affairs, he has not allowed a valuation to

take place, he has not partaken in the mediation that was

agreed, and, as I have already said, he did not sign a request

for trial date.

An order was made by Justice Mullins in 2009 for valuations to
take place but, for reasons which included the valuer's fear of assault, no valuation of the respondent's business has been
conducted.

The applicant has filed affidavit material setting out to the

best of her knowledge all of the matters which this Court is

required to consider. To the extent that the Court has not

been provided with sufficient information, that is entirely at

the hands of the respondent. He has not had solicitors acting

for him for some years as they could not get instructions.

It is with that background in mind that I look at the matters

that the Court is required to consider in making an order under Part 19 of…

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 HMJ v PES

Details

AGLC: HMJ v PES [2012] QSC 119
Case: [2012] QSC 119
Decision Date: 19 April 2012

CaseChat Overview and Summary

The Supreme Court of Queensland heard an originating application for property adjustment orders pursuant to Part 19 of the Property Law Act 1974 (Qld) in the case of HMJ v PES. The applicant sought property adjustment orders, while the respondent did not appear and failed to comply with previous orders made by consent. The Court was required to determine whether to make property adjustment orders in favour of the applicant and to consider the issue of costs.

The Court first considered the identification and valuation of the property, resources, and liabilities of the parties. It was noted that the respondent failed to comply with the orders and the Property Law Act, Part 19, resulting in difficulty in identifying the value of the pool of assets. The Court found that the applicant was entitled to a property adjustment order as the only party who complied with the rules and orders.

The Court then proceeded to identify and assess the contributions of the parties to their pool of assets and determined their contribution-based entitlements in accordance with ss 291 to 295 of the Property Law Act. The Court found that the parties made an equal contribution to the accumulation of assets prior to separation.

Next, the Court considered the factors in ss 297 to 309 of the Property Law Act, which would suggest an adjustment of a contribution-based entitlement. The Court found that at the time of separation, the applicant was in a parlous financial state and was responsible for the care and expenditure for the child, while the respondent continued to run his business and live in the matrimonial property. However, the applicant had since repartnered and obtained a job.

Finally, the Court considered whether the result was just and equitable in accordance with s 286 of the Property Law Act. The Court found that the applicant's request for the transfer of the respondent's interest in the townhouse to her was entirely just and equitable. The Court also ordered the respondent to pay the applicant's costs and incidental costs of the litigation on an indemnity basis due to his conduct in the proceedings.

In conclusion, the Supreme Court of Queensland made an order transferring the respondent's interest in the townhouse to the applicant and ordered the respondent to pay the applicant's costs and incidental costs of the litigation on an indemnity basis.

Orders