HT v CS - [2009] QSC 51

SUPREME COURT OF QUEENSLAND

CITATION:

HT v CS [2009] QSC 051

PARTIES:

HT

(applicant)

V

CS

(respondent)

FILE NO/S:

BS 607/09

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

13 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2009

JUDGE:

White J

ORDER:

1. The application for leave to bring proceedings for a property adjustment order pursuant to s 288 of the Property Law Act 1974 is refused.

2. No order as to costs.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE-FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – APPLICATIONS – where de facto spouse sought leave to apply for a property adjustment order under Pt 19 of the Property Law Act 1974 (Qld) – where more than two years have elapsed since the relationship ceased – whether the judge should apply the test established in Whitford or follow an expanded approach

FAMILY LAW AND CHILD WELFARE – DE-FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – APPLICATIONS – where de facto spouse sought leave to apply for a property adjustment order under Pt 19 of the Property Law Act 1974 (Qld) – where more than two years have elapsed since the relationship ceased – whether the applicant had sufficient explanation as to the delay – whether the applicant would suffer ‘hardship’ if denied leave to apply – whether the judge should exercise the discretion to grant leave to apply

Family Law Act 1975 (Cth), s 44(4)
Public Trustee Act 1978 (Qld), s 91, s 95
Property Law Act 1974 (Qld), ss 286, 288(1), 288(2), 341

D v D [2007] QSC 131, cited
In The Marriage of Neocleous (1993) FLC 92-377, cited
In The Marriage of Whitford (1979) FLC 90-612, applied
SAM v IDP [2007] 2 Qd R 456, cited
Smith v Smith (No.2) [2007] FamCA 1348, cited

COUNSEL:

J W Selfridge for the applicant
S C Fisher, solicitor for the respondent

SOLICITORS:

Stephens & Tozer Solicitors on behalf of the applicant
Newmann & Tournour Lawyers for the respondent

On 16 January 2009 the applicant filed an application for leave to commence proceedings for a property adjustment order pursuant to s 288(2) of the Property Law Act 1974. It was heard on 26 February. The respondent opposes leave being given. The respondent’s only asset out of which any order might be satisfied is the respondent’s share of the proceeds of the sale of their former home.

Section 288 provides:

“1. A court may make a property adjustment order only if –
(a)the application was made within 2 years after the day on which the de facto relationship ended; or

(b) the court has given the applicant leave to apply.

2.The court may give leave only if it is satisfied hardship would result to the applicant or a child of the de facto partners if leave were not given.”

The parties commenced a de facto relationship in or about 1985.[1] The applicant is aged 46 years and the respondent 45 years. The respondent is presently…

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 HT v CS

Details

AGLC: HS v CS [2009] QSC 51
Case: [2009] QSC 51
Decision Date: 13 March 2009

CaseChat Overview and Summary

The case of HT v CS arose from an application by a former de facto spouse to seek leave to apply for a property adjustment order under Part 19 of the Property Law Act 1974 (Qld). The applicant sought to adjust the property interests that accrued during the relationship, more than two years after it had ceased. The primary issue before the court was whether the applicant had a sufficient explanation for the delay in making the application and if the applicant would suffer hardship if the application was denied. Additionally, the court had to determine whether the established test in Whitford or an expanded approach should be applied in assessing the application for leave.

In addressing the legal issues, the court considered the principles outlined in Whitford, which emphasise the importance of the timing of the application and the need for a sufficient explanation for any delay. The court also examined whether the applicant would face hardship if the application was denied, and if the judge should exercise the discretion to grant leave to apply. The court acknowledged that the delay in making the application could impact the fairness of the outcome, but also recognised the need to maintain the integrity of the legal process.

After carefully considering the arguments presented by both parties, the court determined that the applicant had not provided a sufficient explanation for the delay in making the application. The court also found that the applicant would not suffer significant hardship if the application was denied. Consequently, the court exercised its discretion under section 288 of the Property Law Act 1974 (Qld) and refused the application for leave to bring proceedings for a property adjustment order. The court's decision was grounded in the principles of fairness and the need to maintain the integrity of the legal process, despite the potential hardship faced by the applicant.

The final orders of the court were that the application for leave to bring proceedings for a property adjustment order pursuant to section 288 of the Property Law Act 1974 (Qld) was refused. Additionally, the court made no order as to costs, reflecting the court's view that the matter had been adequately addressed without the imposition of costs on either party.

Orders

Orders of the court

1. The application for leave to bring proceedings for a property adjustment order pursuant to s 288 of the Property Law Act 1974 is refused.

2. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	HT v CS [2009] QSC 051
PARTIES:	HT (applicant) V CS (respondent)
FILE NO/S:	BS 607/09
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	13 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	26 February 2009
JUDGE:	White J
ORDER:	1. *The application for leave to bring proceedings for a property adjustment order pursuant to s 288 of the Property Law Act* 1974 is refused. 2. No order as to costs.**
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE-FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – APPLICATIONS – where de facto spouse sought leave to apply for a property adjustment order under Pt 19 of the Property Law Act 1974 (Qld) – where more than two years have elapsed since the relationship ceased – whether the judge should apply the test established in Whitford or follow an expanded approach FAMILY LAW AND CHILD WELFARE – DE-FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – APPLICATIONS – where de facto spouse sought leave to apply for a property adjustment order under Pt 19 of the Property Law Act 1974 (Qld) – where more than two years have elapsed since the relationship ceased – whether the applicant had sufficient explanation as to the delay – whether the applicant would suffer ‘hardship’ if denied leave to apply – whether the judge should exercise the discretion to grant leave to apply Family Law Act 1975 (Cth), s 44(4) Public Trustee Act 1978 (Qld), s 91, s 95 Property Law Act 1974 (Qld), ss 286, 288(1), 288(2), 341 D v D [2007] QSC 131, cited In The Marriage of Neocleous (1993) FLC 92-377, cited In The Marriage of Whitford (1979) FLC 90-612, applied SAM v IDP [2007] 2 Qd R 456, cited Smith v Smith (No.2) [2007] FamCA 1348, cited
COUNSEL:	J W Selfridge for the applicant S C Fisher, solicitor for the respondent
SOLICITORS:	Stephens & Tozer Solicitors on behalf of the applicant Newmann & Tournour Lawyers for the respondent