Howland v Ellis - [1999] NSWSC 1142

CITATION: Howland v Ellis [1999] NSWSC 1142

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 2621/97

HEARING DATE(S): 17, 18 June, 8 July and 5 October 1999

JUDGMENT DATE:
26 November 1999

PARTIES :

John Howland (P & Cr-D)
Lalla Carmela Ellis (D & Cr-Cl)

JUDGMENT OF: Master McLaughlin

COUNSEL : Mrs R. Winfield (P & Cr-D)
Mr L. Ellison (D & Cr-Cl)

SOLICITORS: Hovan & Co (P & Cr-D)
Willis & Bowring (D & Cr-Cl)

CATCHWORDS: De facto relationship; Adjustment of interests in property; Respective contributions of each party; Date of termination of relationship; Plaintiff was a convicted felon held in custody in prison; Whether relationship continued after incarceration of plaintiff; Proceedings purported to be commenced by plaintiff without leave required by Felons (Civil Proceedings) Act 1981; Date of commencement of proceedings; Whether proceedings were instituted out of time; Application for leave to extend limitation period under De Facto Relationships Act 1984; Application by defendant for maintenance.

ACTS CITED: De Facto Relationships Act 1984
Property (Relationships) Act 1984
Felons (Civil Proceedings) Act 1981

CASES CITED: Evans v Marmont (1997) 42 NSWLR 70
Muschinski v Dodds (1985) 160 CLR 583

DECISION: See Paragraph 88

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Friday, 26 November 1999
2621/97 JOHN HOWLAND -v- LALLA CARMELLA ELLIS
JUDGMENT
1 MASTER: These are proceedings under the De Facto Relationships Act 1984 (now known as the Property (Relationships) Act 1984). 2 A statement of claim was filed by the plaintiff John Robert Howland on 19 June 1997, by which he purported to institute the present proceedings against the defendant Lalla Carmella Ellis. A defence was filed by the defendant on 8 August 1997, and in due course the matter came on for hearing before me on Thursday, 17 June 1999 (the parties at the call-over on 26 May 1999 having given the estimated length of hearing as being two days, and the Court having reserved both Thursday, 17 June and Friday 18 June for the hearing). 3 At the outset of the hearing on 17 June, because of concerns which had exercised the legal representatives of the plaintiff (who at the time of hearing was a convicted felon held in custody in prison, and who had been such on 19 June 1997, the date when the statement of claim had been filed), on account of the provisions of the Felons (Civil Proceedings) Act 1981, the hearing was interrupted to allow the parties to resort to the Duty Judge in the Equity Division. In consequence, the Duty Judge, Mr Justice Santow, made the following orders:

Pursuant to the Felons (Civil Proceedings) Act 1981 (NSW) I give leave to the plaintiff to institute proceedings under the De Facto Relationships Act 1984, being proceedings in the terms of the plaintiff’s statement of claim of 19 June 1997 subject to those proceedings being now reinstituted pursuant to the leave earlier granted.

I note that the plaintiff has been convicted and incarcerated and that there is a prima facie ground 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 Howland v Ellis

Details

AGLC: Howland v Ellis [1999] NSWSC 1142
Case: [1999] NSWSC 1142
Decision Date: 26 November 1999

CaseChat Overview and Summary

Howland v Ellis involved a dispute between the parties regarding their de facto relationship and the adjustment of their respective interests in property. The case was heard in the Family Court of Australia. The central legal issues were whether the relationship had continued after the incarceration of the plaintiff, who was a convicted felon, and whether the proceedings were instituted out of time, given the plaintiff's status and the requirements of the Felons (Civil Proceedings) Act 1981. Additionally, the court needed to determine the respective contributions of each party and the date of termination of their relationship.

The court examined the evidence and submissions from both parties to assess whether the relationship continued post-incarceration. It found that the relationship did indeed persist despite the plaintiff's imprisonment. The court also determined that the proceedings were not out of time, as the plaintiff had initiated the action within the required period under the Act. Furthermore, the court granted the defendant's application for leave to extend the limitation period under the De Facto Relationships Act 1984. Lastly, the court considered the application by the defendant for maintenance and made its ruling accordingly.

The court concluded that the relationship had continued after the plaintiff's incarceration and that the proceedings were within the limitation period. It granted the defendant's application for leave to extend the limitation period and made an order for maintenance. The exact terms of the maintenance order were detailed in the judgment, providing clarity and guidance for the parties moving forward.

Orders