JJW v Rem - [2013] QDC 242

DISTRICT COURT OF QUEENSLAND

CITATION:

JJW v REM [2013] QDC 242

PARTIES:

JJW
(Applicant)

and

REM
(Respondent)

FILE NO/S:

D106/12 Mackay

DIVISION:

Civil

PROCEEDING:

Originating Application - property adjustment

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

26 September 2013

DELIVERED AT:

Townsville

HEARING DATE:

27, 28, & 29 August 2013

JUDGE:

Durward SC DCJ

ORDERS:

1.   That the real property assets are to be sold and the net proceeds apportioned 60% to the applicant and 40% to the respondent. The detail of this Order and other associated or concurrent Orders are as per attached draft.

2.   That the parties each retain the personal property currently in their respective possession.

3.   I will hear the parties with respect to costs.

4.   I will hear submissions as to any orders that relate to the conduct of one or other of the parties in the proceeding.

CATCHWORDS:
LEGISLATION:
CASES:

DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – property settlement –relationship of 15 years – contributions of parties – real property assets – relevant considerations in apportionment

ASCERTAINMENT OF PROPERTY ENTITLEMENT – global approach appropriate in the circumstances – real property interests the principal assets – personal property including chattels of little consequence in the apportionment.

PRACTICE AND PROCEDURE – WITNESSES – CREDIBILITY – where respondent made numerous unsubstantiated allegations of misconduct and fraud against applicant’s solicitor and counsel – where respondent untruthful and obstructionist in the proceedings – determination of issues of credibility.

PRACTICE AND PROCEDURE – PARTIES – EVIDENCE – where respondent found to have been dishonest in numerous respects in affidavit and testimonial evidence – where respondent failed to meet disclosure obligation despite having maintained and persisted with unfounded allegations that applicant had failed to meet her disclosure obligation.- relevant considerations

Ch 19 Property law Act 1974; ss 75 (2) & 79 Family Law Act 1974 (Cth).

Norbis v Norbis (1986) 161 CLR 513; Lenehan v Lenehan (1987) 11 Fam LR 615; NFO v PFA [2005] QSC 176; Phillips & Phillips [2002] FLC 93-104; Pierce and Williams [1999] FLC 92-844; Re: McLay [1996] 20 Fam LR 239.

COUNSEL:

MA Fellows for the Applicant
Respondent self represented

SOLICITORS:

J. Hamilton & Associates, Solicitors, for the Applicant
Respondent self represented

The Applicant has sought an adjustment of the parties property following the end of their de facto relationship, pursuant to Ch. 19 of the Property Law Act 1974 (“the Act”).

The Originating Application

The applicant in an Originating Application filed on 16 November 2012 sought appointment as Trustee for Sale of properties at Lot 9 Boulder Road, Finch Hatton and 20 Oliver’s Road Finch Hatton (“the properties”); vacant possession to be delivered-up and the removal of certain chattels from the properties, by the respondent; the expenditure of a sum of money to effect repairs and maintenance at the Oliver’s Road property; an injunction restraining the respondent with respect to dealings in certain property; orders with respect to the disposition of the proceeds of sale and the parties retention 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 JJW v Rem

Details

AGLC: JJW v REM [2013] QDC 242
Case: [2013] QDC 242
Decision Date: 26 September 2013

CaseChat Overview and Summary

The case of JJW v Rem dealt with a property settlement dispute following the breakdown of a de facto relationship of 15 years. The primary focus of the dispute was the apportionment of the couple's real property assets. The parties presented their cases before the court, which needed to decide various legal issues, including the appropriate approach to determining property entitlements and the credibility of the parties' evidence.

The legal issues centred around the appropriate method for apportionment of the couple's property, given the duration of their relationship and the contributions of each party. The court had to determine whether a global approach was suitable, considering the real property assets as the principal assets, and whether personal property, including chattels, should be factored into the apportionment. Furthermore, the court had to assess the credibility of the parties' evidence and the validity of numerous allegations made by the respondent against the applicant's legal representatives.

In reaching its decision, the court considered the duration of the relationship, the nature of the contributions by each party, and the value of the real property assets. The court found that a global approach was appropriate given the circumstances. The credibility of the respondent was heavily scrutinised, and the respondent was found to be untruthful and obstructionist. The court found the respondent's allegations of misconduct and fraud against the applicant's legal representatives to be unsubstantiated. The court apportioned the real property assets 60% to the applicant and 40% to the respondent. Personal property was to be retained by each party in their respective possession. The court reserved the right to hear further submissions on costs and any other orders relating to the conduct of the parties.

The court issued an order for the sale of the real property assets, with the net proceeds to be apportioned between the parties in the ratio of 60% to the applicant and 40% to the respondent. The parties were to retain the personal property in their possession. The court indicated that it would hear further submissions regarding costs and any other orders related to the conduct of the parties.

Orders

Orders of the court

1. That the real property assets are to be sold and the net proceeds apportioned 60% to the applicant and 40% to the respondent. The detail of this Order and other associated or concurrent Orders are as per attached draft.

2. That the parties each retain the personal property currently in their respective possession.

3. I will hear the parties with respect to costs.

4. I will hear submissions as to any orders that relate to the conduct of one or other of the parties in the proceeding.

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:	JJW v REM [2013] QDC 242
PARTIES:	JJW (Applicant) and REM (Respondent)
FILE NO/S:	D106/12 Mackay
DIVISION:	Civil
PROCEEDING:	Originating Application - property adjustment
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	26 September 2013
DELIVERED AT:	Townsville
HEARING DATE:	27, 28, & 29 August 2013
JUDGE:	Durward SC DCJ
ORDERS:	1. That the real property assets are to be sold and the net proceeds apportioned 60% to the applicant and 40% to the respondent. The detail of this Order and other associated or concurrent Orders are as per attached draft. 2. That the parties each retain the personal property currently in their respective possession. 3. I will hear the parties with respect to costs. 4. I will hear submissions as to any orders that relate to the conduct of one or other of the parties in the proceeding.
CATCHWORDS: LEGISLATION: CASES:	DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – property settlement –relationship of 15 years – contributions of parties – real property assets – relevant considerations in apportionment ASCERTAINMENT OF PROPERTY ENTITLEMENT – global approach appropriate in the circumstances – real property interests the principal assets – personal property including chattels of little consequence in the apportionment. PRACTICE AND PROCEDURE – WITNESSES – CREDIBILITY – where respondent made numerous unsubstantiated allegations of misconduct and fraud against applicant’s solicitor and counsel – where respondent untruthful and obstructionist in the proceedings – determination of issues of credibility. PRACTICE AND PROCEDURE – PARTIES – EVIDENCE – where respondent found to have been dishonest in numerous respects in affidavit and testimonial evidence – where respondent failed to meet disclosure obligation despite having maintained and persisted with unfounded allegations that applicant had failed to meet her disclosure obligation.- relevant considerations Ch 19 Property law Act 1974; ss 75 (2) & 79 Family Law Act 1974 (Cth). Norbis v Norbis (1986) 161 CLR 513; Lenehan v Lenehan (1987) 11 Fam LR 615; NFO v PFA [2005] QSC 176; Phillips & Phillips [2002] FLC 93-104; Pierce and Williams [1999] FLC 92-844; Re: McLay [1996] 20 Fam LR 239.
COUNSEL:	MA Fellows for the Applicant Respondent self represented
SOLICITORS:	J. Hamilton & Associates, Solicitors, for the Applicant Respondent self represented