Joyce v Delany - [2004] VSC 338

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6171 of 2004

IN THE MATTER of an application under the Property Law Act 1958

GIANNA JOYCE	Plaintiff
and
GERALD RICHARD DELANY	First Defendant
and
LA PATRICE HOLDINGS PTY LTD	Second Defendant

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JUDGE:	Williams J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2004
DATE OF JUDGMENT:	8 September 2004
CASE MAY BE CITED AS:	Joyce v Delany & La Patrice Holdings Pty Ltd
MEDIUM NEUTRAL CITATION:	[2004] VSC 338

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DOMESTIC RELATIONSHIPS – Adjustment of property interests – Application for leave to commence proceedings out of time – Comparative hardship – Exercise of discretion – Significance of delay – Property Law Act 1958 s 282(2), s 285.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Edmunds	Michael L Maplestone
For the Defendants	Mr M Robins	Nathan Kuperholz

HER HONOUR:

The plaintiff has applied under s 282(2) of the Property Law Act 1958 (“the Act”) for leave to apply out of time for an order for the adjustment of property under s 285 of the Act.

There are two defendants to the application. It was common ground that the first defendant and the plaintiff had been “domestic partners” involved in a “domestic relationship”, within the meaning of those expressions in s 275 of the Act, before they ceased living together on 1 January 2000. The second defendant is the registered proprietor of a property at 15 Erica Street Prahran (“the Prahran property”) which the plaintiff asserted was to be treated for the purposes of the application as an asset of its controller, the first defendant.[1] The defendants did not dispute this assertion.
[1]See: Lovegrove v Richards [2003] VSC 465 at [15] per Balmford J

The Act

S 285 of the Act relevantly provides as follows for the adjustment of the interests of domestic partners in property:

“285. Order for adjustment
(1)A court may make an order adjusting the interests of the domestic partners in the property of one or both of them that seems just and equitable to it having regard to –
(a)the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to the acquisition, conservation or improvement of any of the property or to the financial resources of one or both of the partners; and
(b)the contributions, including any contributions made in the capacity of home maker or parent, made by either of the domestic partners to the welfare of the other domestic partner or to the welfare of the family constituted by the partners and one or more of the following –
(i)a child of the partners;
(ii)a child accepted by one or both of the partners into their household, whether or not the child is a child of either of the partners; and

(c)any written agreement entered into by the domestic partners.

(2)A court may make the Order whether or not it has declared the title or rights of a domestic partner…

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 Joyce v Delany

Details

AGLC: Joyce v Delany [2004] VSC 338
Case: [2004] VSC 338
Decision Date: 8 September 2004

CaseChat Overview and Summary

In the case of Joyce v Delany, the parties involved were the respondents, Joyce, and the appellant, Delany. The dispute centred around the adjustment of property interests between the parties, who had been in a de facto relationship. The case was heard in the Supreme Court of Victoria. The appellant sought leave to commence proceedings out of time, pursuant to section 282(2) of the Property Law Act 1958, to apply for a variation of the property settlement order made by the Family Court of Australia.

The legal issues that the court was required to decide included whether the appellant had established sufficient grounds for the delay in seeking leave to commence proceedings out of time, and whether the appellant had demonstrated that the grant of leave would not cause undue hardship to the respondents. The court had to balance the comparative hardship of the parties and exercise its discretion in accordance with section 285 of the Property Law Act 1958.

The court found that the appellant had not demonstrated sufficient grounds for the delay in seeking leave to commence proceedings out of time. The court held that the appellant's failure to take timely action and the significant delay in seeking leave were factors that weighed against granting leave. The court also found that the appellant had not demonstrated that the grant of leave would not cause undue hardship to the respondents, as the delay in seeking leave had caused the respondents to incur significant costs and expenses in defending the proceedings. The court ultimately exercised its discretion under section 285 of the Property Law Act 1958 to refuse the appellant's application for leave to commence proceedings out of time.

The court's final orders were that the appellant's application for leave to commence proceedings out of time was dismissed, and the appellant was ordered to pay the respondents' costs of the application. The court held that the significant delay in seeking leave and the lack of sufficient grounds for the delay were compelling reasons to refuse the application for leave. The court also noted that the grant of leave would have caused undue hardship to the respondents, who had already incurred significant costs and expenses in defending the proceedings. The court's decision highlights the importance of taking timely action in property disputes and the potential consequences of significant delays in seeking relief.

Orders