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IBM v TTV

IBM v TTV

Case [2011] QDC 76 18 May 2011

De Facto Relationships

Property Settlement

Identification of Assets

Contributions

Family Law

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DISTRICT COURT OF QUEENSLAND

CITATION:

IBM v TTV [2011] QDC 76

PARTIES:

IBM
(Plaintiff)

AND

TTV
(Defendant)

FILE NO/S:

D327/08

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

18 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

8 and 9 March 2011

JUDGE:

Dorney QC DCJ

ORDERS:

1.   That Unit 15, situated at 15/67 Edmund Rice Road, Southport in the State of Queensland, be sold and that the nett proceeds be divided equally between the plaintiff and the defendant.

2.   That all other items of property such as motor vehicles, furniture and superannuation interests, together with all other property currently held by the parties respectively, remain in their present ownership and possession.

3.   That both parties file draft orders, to give effect to the judgment reached, by 4pm on 25 May 2011.

4.   That both parties have leave to file any submissions as to the appointment of trustees for sale, and costs (if any), by 4pm on 25 May 2011.

CATCHWORDS:

DE FACTO RELATIONSHIPS – property settlement – identification of assets and contributions – no adjustment

Acts Interpretation Act 1954, ss 32DA, 32DA(2), 32DA(3), 32DA(4)

Property Law Act 1974, ss 38, 259, 260, 261, 263(c), 286, 287(a), 291, 291(3), 292, 294, 295, 297, 309, 333(i)(g), 337, 341, 341(2), 341(4), 341(4)(f)
KQ v HAE [2007] 2 Qd R 32
FO v HAF [2007] 2 Qd R 138
LAB v AH [2009] QSC 310
PY v CY [2005] QCA 247
Hibberson v George (1989) 12 Fam LR 725
AC v CM [2010] QSC 384
GAJ v RAJ [2011] QCA 65
Hickey v Hickey [2003] FLC 93-143
Mallet v Mallet (1984) 156 CLR 605
Burgess v King [2005] NSWCA 396
LW v GAB [2007] QCA 386
LCL v JGA [2010] QDC 266
RD v DB [2011] QSC 83
PLM v RWS [2006] QCA 528
In the marriage of Pierce [1998] Fam CA 74
Norbis v Norbis (1986) 161 CLR 513

COUNSEL:

K Geraghty for the plaintiff

C Cooper (Solicitor) for the defendant

SOLICITORS:

Hunter Solicitors for the plaintiff

Charles Cooper Lawyers for the defendant

Introduction

The plaintiff is 60 years of age. The defendant is 58 years of age. While the defendant raised in her defence and counterclaim issues which form the basis of a claim pursuant to s 286 of the Property Law Act 1974 (PLA) – for a property division arising from an alleged de facto relationship between the parties – the plaintiff’s original pleadings and his reply and answer not only denied the existence of any relevant relationship lasting “at least two years” – see s 287(a) of the PLA – but also sought a declaration of a trust over the real property (containing improvements) situated at 15/67 Edmund Rice Drive, Southport, which is presently held by the parties as joint tenants, together with consequential orders for relief, including that the defendant: transfer to the plaintiff all her interest in that real property; pay the sum of $10,000.00; and transfer all of her interest in a (now sold)…

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 IBM v TTV

Details

AGLC: IBM v TTV [2011] QDC 76
Case: [2011] QDC 76
Decision Date: 18 May 2011

CaseChat Overview and Summary

The matter of IBM v TTV was before the Family Court of Australia, where the dispute centred on the division of assets following the termination of a de facto relationship between the parties. The plaintiff, IBM, sought a property settlement that included an adjustment for the contributions made by each party during the relationship. The defendant, TTV, contested the plaintiff's claims, arguing that no adjustment was necessary given the nature of their contributions and the assets they held. The court was tasked with determining the fair division of the assets, considering the contributions made by each party to the relationship and the property accumulated during that time.

The primary legal issue for the court was to identify the assets of the parties and determine the contributions made by each party to the relationship, in order to achieve a fair and just property settlement. The court had to examine the evidence presented by both parties regarding their respective contributions, both financial and non-financial, to the relationship. Additionally, the court needed to consider the nature of the assets held by the parties, including whether any adjustments should be made to reflect the contributions of each party. The court's decision hinged on its interpretation of the evidence and its application of the principles of fairness and justice in the context of de facto relationships.

In its judgment, the court found that the plaintiff and the defendant had made significant contributions to the relationship, both financial and non-financial. However, the court determined that the contributions made by each party were sufficiently reflected in the assets they held. The court held that no adjustment was necessary to achieve a fair division of the assets, given the evidence presented. The court ordered that certain assets, including a unit in Southport, be sold, with the net proceeds divided equally between the parties. Other assets, such as motor vehicles, furniture, and superannuation interests, were to remain in the possession of the respective parties. The court also provided directions for the parties to file draft orders and any submissions regarding the appointment of trustees for the sale and costs.

The final orders of the court mandated that the unit at 15/67 Edmund Rice Road, Southport, be sold, with the net proceeds divided equally between the parties. Other property, including motor vehicles, furniture, and superannuation interests, were to remain in the possession of the respective parties. The parties were directed to file draft orders reflecting the judgment by a specified date and to submit any further submissions regarding the appointment of trustees and costs by the same date. The court's decision provided a clear and fair resolution to the property settlement dispute, reflecting the contributions of both parties and ensuring a just division of their assets.

Orders

Orders of the court

1. That Unit 15, situated at 15/67 Edmund Rice Road, Southport in the State of Queensland, be sold and that the nett proceeds be divided equally between the plaintiff and the defendant.

2. That all other items of property such as motor vehicles, furniture and superannuation interests, together with all other property currently held by the parties respectively, remain in their present ownership and possession.

3. That both parties file draft orders, to give effect to the judgment reached, by 4pm on 25 May 2011.

4. That both parties have leave to file any submissions as to the appointment of trustees for sale, and costs (if any), by 4pm on 25 May 2011.

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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Citations

IBM v TTV [2011] QDC 76

Cases Citing This Decision

No citing cases yet.

Cases Cited

RD v DB [2011] QSC 83
Citation 1 (Para 1)

…Since there are submissions concerning initial contributions, it has been noted that Applegarth J in RD v DB [2011] QSC 83 referred to the so-called “erosion principle”: at [30]. After noting that the Court of Appeal’s decision in PLM v RWS [2006] QCA 528 supported four particular propositions – which I will set…
GAJ v RAJ [2011] QCA 65
Citation 2 (Para 1)

…As the Queensland Court of Appeal recently reiterated in GAJ v RAJ [2011] QCA 65, through White JA, with whom Holmes JA and PD McMurdo J expressly agreed, the approach adopted for the exercise of the judicial discretion conferred by s 286(1) of the PLA is that discussed by Keane JA (as his Honour then was) in FO…
AC v CM [2010] QSC 384
Citation 3 (Para 1)

…ve the positive aspects of the relationship rather than the party asserting separation being required to prove the negatives: at 549 [50]. In AC v CM [2010] QSC 384, McMeekin J, after noting that the respondent to the application pursuant to Part 19 asserted that they were “boyfriend-girlfriend”, held that the ma…
LCL v Jga [2010] QDC 266
Citation 4 (Para 1)

…In his survey of relevant authority conducted recently by McGill SC DCJ in LCL v JGA [2010] QDC 266 it was concluded that, while it is appropriate to determine the value of the contributions of the parties to the assets at the beginning of the relationship, the determination of the value of the “asset pool” is to…
LAB v AWH [2009] QSC 310
Citation 5 (Para 1)

…d their lives that they were, for all practical purposes, living together as a married couple”: see the summary provided by McMurdo J in LAB v AH [2009] QSC 310 at [3].…
LW v GAB [2007] QCA 386
Citation 6 (Para 1)

…in the capital appreciation of an asset of the relationship in accordance with their initial contributions to the relationship, Keane JA in LW v GAB [2007] QCA 386 observed that there is a difficulty with applying that proposition where the contribution of one party to the acquisition of specific real property i…
BLM v RWS [2006] QCA 528
Citation 7 (Para 1)

…in RD v DB [2011] QSC 83 referred to the so-called “erosion principle”: at [30]. After noting that the Court of Appeal’s decision in PLM v RWS [2006] QCA 528 supported four particular propositions – which I will set out presently – it was further noted that, in In the marriage of Pierce [1998] Fam CA 74 at 78 it…
Burgess v King [2005] NSWCA 396
Citation 8 (Para 1)

…In dealing with reliance upon Burgess v King [2005] NSWCA 396 to support the prima facie position that the parties should participate in the capital appreciation of an asset of the relationship in accordance with their initial contributions to the relationship, Keane JA in LW v GAB [2007] QCA 386 observed that ther…
PY v CY [2005] QCA 247
Citation 9 (Para 1)

…define more precisely than the legislature the kind of relationship regulated by” Part 19 of the PLA: at 149 [26]. He earlier noted that PY v CY [2005] QCA 247, at [7], “confirmed” that continuing cohabitation in a “common residence” is “not necessary to establish the continuation” of a de facto relationship whe…
Hibberson v George [1989] NSWCA 100
Citation 10 (Para 1)

…tney J, speaking for the court on this aspect, held that de facto relationships are, by nature, fragile and that it has been recognised [referring to Hibberson v George (1989) 12 Fam LR 725] that the persistence of the observable indicia of a domestic relationship is fundamental to the continuance of a de facto relationship…
Norbis v Norbis [1986] HCA 17
Citation 11 (Para 1)

…still needed to be considered [referring to Nygh J in In the marriage of Gill, which was cited with approval by Mason and Deane JJ in Norbis v Norbis (1986) 161 CLR 513 at 523]: at [32].…
Mallet v Mallet [1984] HCA 21
Citation 12 (Para 1)

…In GAJ v RAJ , by reference to Mallet v Mallet (1984) 156 CLR 605, White JA said that the High Court had made it clear that it is not correct to start with an assumption that property should be divided between the parties in any pre-determined proportions, or that equality is a convenient starting point after a long…

Legislation Cited

Property Law Act 1974 (Qld) 259, 260, 261, 263(c), 286, 287(a), 291,...
15 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld) 32DA, 32DA(2), 32DA(3), 32DA(4)
4 mentions
Uniform Civil Procedure Rules 1999 (Qld)
1 mention (from Para 1)

CITATION:	IBM v TTV [2011] QDC 76
PARTIES:	IBM (Plaintiff) AND TTV (Defendant)
FILE NO/S:	D327/08
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	18 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	8 and 9 March 2011
JUDGE:	Dorney QC DCJ
ORDERS:	1. That Unit 15, situated at 15/67 Edmund Rice Road, Southport in the State of Queensland, be sold and that the nett proceeds be divided equally between the plaintiff and the defendant. 2. That all other items of property such as motor vehicles, furniture and superannuation interests, together with all other property currently held by the parties respectively, remain in their present ownership and possession. 3. That both parties file draft orders, to give effect to the judgment reached, by 4pm on 25 May 2011. 4. That both parties have leave to file any submissions as to the appointment of trustees for sale, and costs (if any), by 4pm on 25 May 2011.
CATCHWORDS:	DE FACTO RELATIONSHIPS – property settlement – identification of assets and contributions – no adjustment Acts Interpretation Act 1954, ss 32DA, 32DA(2), 32DA(3), 32DA(4) Property Law Act 1974, ss 38, 259, 260, 261, 263(c), 286, 287(a), 291, 291(3), 292, 294, 295, 297, 309, 333(i)(g), 337, 341, 341(2), 341(4), 341(4)(f) KQ v HAE [2007] 2 Qd R 32 FO v HAF [2007] 2 Qd R 138 LAB v AH [2009] QSC 310 PY v CY [2005] QCA 247 Hibberson v George (1989) 12 Fam LR 725 AC v CM [2010] QSC 384 GAJ v RAJ [2011] QCA 65 Hickey v Hickey [2003] FLC 93-143 Mallet v Mallet (1984) 156 CLR 605 Burgess v King [2005] NSWCA 396 LW v GAB [2007] QCA 386 LCL v JGA [2010] QDC 266 RD v DB [2011] QSC 83 PLM v RWS [2006] QCA 528 In the marriage of Pierce [1998] Fam CA 74 Norbis v Norbis (1986) 161 CLR 513
COUNSEL:	K Geraghty for the plaintiff C Cooper (Solicitor) for the defendant
SOLICITORS:	Hunter Solicitors for the plaintiff Charles Cooper Lawyers for the defendant