Benfield v Farebrother [2011] NTSC 65
PARTIES: JULIA BENFIELD
v
JAMIN FAREBROTHER
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 36 of 2010 (21013180)
DELIVERED: 30 AUGUST 2011
HEARING DATES: 16, 17, 18, 20 MAY 2011 AND WRITTEN SUBMISSIONS TO 29 JULY 2011
JUDGMENT OF: MASTER LUPPINO
CATCHWORDS:
De Facto Relationships – Application for adjustive property order – Factors relevant to determining the duration of the relationship – Principles relevant to assessment of entitlements – Approach to be taken in determining entitlements – Time limit for commencing actions under the Act.
Practice and Procedure – Sufficiency of prayer for relief – Seeking relief not claimed on the pleadings – Request for extension of limitation period made after closing of evidence.
De Facto Relationships Act ss 3A, 14, 15, 16, 18
Supreme Court Rules r 13.02
Dare v Pulham (1982) 148 CLR 658;
Blay v Pollard [1930] 1 KB 628;
Wicks v Bennett (1921) 30 CLR 80;
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
Kardos v Sarbutt (2006) 34 Fam LR 550.
Evans v Marmont (1997) 21 Fam LR 760.
Parker v Parker (1993) 16 DFC 95-139.
Ottley v Chester [2010] NTSC 38.Grant, Civil Procedure Northern Territory.
Williams, Civil Procedure.REPRESENTATION:
Counsel:
Plaintiff: Mr Black
Defendant: Ms Gillies
Solicitors:
Plaintiff: Cecil Black Family Lawyers
Defendant: Ward Keller Lawyers
Judgment category classification: B
Judgment ID Number: LUP1106
Number of pages: 53
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINBenfield v Farebrother [2011] NTSC 65
No. 36 of 2010 (21013180)
BETWEEN:
JULIA BENFIELD
Plaintiff
AND:
JAMIN FAREBROTHER
Defendant
CORAM: MASTER LUPPINO
REASONS FOR DECISION
(Delivered 30 August 2011)
This is an application by the Plaintiff for an adjusting property order pursuant to section 18 of the De Facto Relationships Act (“the Act”).
The prayer for relief in the Plaintiff’s Statement of Claim sought orders as follows:-
1. That the Plaintiff retains the property at 45 McInnis Circuit, Driver;
2. That the Defendant settle upon the Plaintiff such other property as it is in the opinion of this Court necessary to effect the principles set out in section 18 of the De Facto Relationships Act; and
3. That the Defendant retain his property interests.
When the Plaintiff’s case was opened at trial it was revealed that the specific orders that the Plaintiff sought were for a payment representing 40% of the net pool on the basis that the Plaintiff retained her house situate at 45 McInnis Circuit, Driver (“the Driver Property”) and with an appropriate adjustment on that account. The Defendant opposes any order in favour of the Plaintiff and seeks orders dismissing the Plaintiff’s claim. The Defendant asserts that the distribution of assets to date has resulted in a distribution in favour of the Plaintiff more favourable then she would be entitled to under the Act.
The first mention that the…
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- Benfield v Farebrother [2011] NTSC 65
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- [2011] NTSC 65
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CaseChat Overview and Summary
The court began by examining the nature and duration of the relationship between the parties, considering various factors such as the length of the relationship, the nature of the commitment between the parties, and the extent to which the relationship was akin to a marriage. The court emphasised that the determination of the duration of a de facto relationship should be based on a holistic assessment of the relationship, rather than a rigid application of specific criteria. The court also outlined the principles relevant to the assessment of entitlements, including the extent to which the relationship contributed to the acquisition or enhancement of property, and the financial needs and contributions of each party. Furthermore, the court considered the applicant's request for an extension of the limitation period, which was made after the closing of evidence. The court concluded that the request was not properly before it, as it had not been claimed on the pleadings and was made outside the appropriate timeframe.
In its reasoning, the court found that the applicant had not sufficiently demonstrated the existence of a de facto relationship for the required duration to justify an adjustive property order. The court also determined that the applicant's request for an extension of the limitation period was not properly before it and, therefore, could not be granted. Consequently, the court dismissed the applicant's application for an adjustive property order. The court did not make any orders regarding the extension of the limitation period, as it found that the application for such relief was not properly before it.
Orders
Orders of the court
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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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