Jonsson v Stewart - [2002] QDC 222

DISTRICT COURT OF QUEENSLAND

CITATION:

Jonsson v. Stewart [2002] QDC 222

PARTIES:

OLE HELGE JONSSON  (Plaintiff)

And

JENNIFER ROSE STEWART  (Defendant)

FILE NO/S:

D214/02

DIVISION:

Applications

ORIGINATING COURT:

District Court

DELIVERED ON:

9 September 2002

DELIVERED AT:

Maroochydore

HEARING DATE:

9 September 2002

JUDGE:

Judge J.M. Robertson

ORDER:

1.     Defendant’s application to strike out plaintiff’s claim is dismissed with costs.

2.     Plaintiff’s application for leave to apply adjourned to a date to be fixed, costs reserved.

CATCHWORDS:

De facto relationship – application for property adjustment – application to strike out claim made pursuant to s.283 of the Property Law Act 1974 – application for leave to apply pursuant to s.288(1)(b) – where date of cessation of relationship uncertain – whether application for leave should precede application for property adjustment – meaning of “hardship” in s.288(2)

Cases cited:
Whitford v. Whitford (1979) FLC 90-612 78; (1979) 4 Fam LR 754
Neocleous v. Neocleous (1993) FLC 92-377, 16 Fam LR 557

Statutes considered:
Property Law Act 1974, s.283, s.288(1)(b)

Family Law Act 1975, s.44

COUNSEL:

P J Sweetapple for the Plaintiff

M D Martin for the Defendant

SOLICITORS:

Rimmer Lawyers for the Plaintiff

Robert Bakker Lawyer for the Defendant

There are two applications before the Court. The first in time is the plaintiff’s application in paragraph 1 of his Statement of Claim that he be granted leave to apply pursuant to s.288(1)(b) of the Property Law Act 1974 for an order adjusting interests in the property of the parties who lived as de facto spouses for a period in excess of two years commencing in or about December 1996. The plaintiff is unable to recall the actual date on which the de facto relationship ended, except to say that it was “in or about June” in the Statement of Claim and “the latter part of June” in his one paged affidavit sworn today and filed by leave. The second application in time is the defendant’s application to strike out the plaintiff’s claim “on the grounds that the plaintiff had failed to obtain leave pursuant to s.288(1)(b), to bring his proceedings”. The defendant says that the de facto relationship ended in May 2000 and, as the plaintiff’s claim was not filed until the 20^th June 2002, it should be struck out.

Mr Martin for the defendant submits that there is no application for leave before the Court today as no oral application has been made. As the second of the plaintiff’s affidavits sworn today and filed by leave was only served today, he is not in a position to meet an application for leave pursuant to s.288(1)(b).

Section 283 of the Property Law Act 1974 is in these terms:

“283 De facto spouse may apply
After a de facto relationship has ended, a de facto spouse may apply to a court for an order adjusting interests in the property of either or both of the de facto spouses.”

Section 288 of the Property Law Act 1974 is in these terms:

“288 Time…

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 Jonsson v Stewart

Details

AGLC: J v S [2002] QDC 222
Case: [2002] QDC 222
Decision Date: 9 September 2002

CaseChat Overview and Summary

In the matter of Jonsson v Stewart, the Queensland District Court addressed a dispute concerning a claim for property adjustment arising from the termination of a de facto relationship. The plaintiff, Ms Jonsson, sought a property adjustment under the Property Law Act 1974, asserting that she was in a de facto relationship with the defendant, Mr Stewart, and that she was entitled to a share of his property as a result of the relationship's dissolution. The defendant contested the claim, arguing that the relationship had not been established and sought to strike out the plaintiff's claim. Additionally, the plaintiff applied for leave to make the property adjustment claim under section 288(1)(b) of the Act, which the defendant opposed on the grounds that the application should be dismissed as an abuse of process.

The court was required to determine whether the application for leave to apply should precede the application for property adjustment, and if so, under what circumstances. Further, the court needed to interpret the meaning of "hardship" as it appears in section 288(2) of the Act, particularly in the context of an uncertain date of cessation of the relationship. The court also had to consider whether the plaintiff's application to strike out the claim should be dismissed or upheld.

The court held that the application to strike out the claim should be dismissed with costs, as there was sufficient evidence to suggest that a de facto relationship existed. The court determined that the application for leave to apply should not necessarily precede the property adjustment application, particularly when the date of cessation of the relationship was uncertain. In interpreting "hardship" under section 288(2), the court found that it referred to circumstances that would make it unjust or oppressive to require the applicant to pursue a formal application before being granted leave. The plaintiff's application for leave was adjourned to a date to be fixed, with costs reserved.

The court's final orders were that the defendant's application to strike out the plaintiff's claim was dismissed with costs, and the plaintiff's application for leave to apply was adjourned to a date to be fixed, with costs reserved.

Orders

Orders of the court

1. Defendant’s application to strike out plaintiff’s claim is dismissed with costs.

2. Plaintiff’s application for leave to apply adjourned to a date to be fixed, costs reserved.

Background

Background to the litigation

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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:	Jonsson v. Stewart [2002] QDC 222
PARTIES:	OLE HELGE JONSSON (Plaintiff) And JENNIFER ROSE STEWART (Defendant)
FILE NO/S:	D214/02
DIVISION:	Applications
ORIGINATING COURT:	District Court
DELIVERED ON:	9 September 2002
DELIVERED AT:	Maroochydore
HEARING DATE:	9 September 2002
JUDGE:	Judge J.M. Robertson
ORDER:	1. Defendant’s application to strike out plaintiff’s claim is dismissed with costs. 2. Plaintiff’s application for leave to apply adjourned to a date to be fixed, costs reserved.
CATCHWORDS:	De facto relationship – application for property adjustment – application to strike out claim made pursuant to s.283 of the Property Law Act 1974 – application for leave to apply pursuant to s.288(1)(b) – where date of cessation of relationship uncertain – whether application for leave should precede application for property adjustment – meaning of “hardship” in s.288(2) *Cases cited:* Whitford v. Whitford (1979) FLC 90-612 78; (1979) 4 Fam LR 754 Neocleous v. Neocleous (1993) FLC 92-377, 16 Fam LR 557 *Statutes considered:* Property Law Act 1974, s.283, s.288(1)(b) Family Law Act 1975, s.44
COUNSEL:	P J Sweetapple for the Plaintiff M D Martin for the Defendant
SOLICITORS:	Rimmer Lawyers for the Plaintiff Robert Bakker Lawyer for the Defendant