KAE v WAK - [2010] QCA 327

SUPREME COURT OF QUEENSLAND

CITATION:

KAE v WAK [2010] QCA 327

PARTIES:

KAE
(applicant/appellant)
v
WAK
(respondent/respondent)

FILE NO/S:

Appeal No 7683 of 2010
SC No 7347 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

17 November 2010

JUDGES:

Muir and White JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal be dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – GENERALLY – appellant and respondent ended de facto relationship – appellant applied for a property adjustment order pursuant to s 283 Property Law Act 1974 (Qld) – appellant failed to comply with disclosure obligations – primary judge ordered appellant’s application be dismissed – appellant submitted failure to disclose was due to personal circumstances, ignorance of legal matters and inability to access documents – appellant submits application unfairly dismissed – whether primary judge erred in dismissing application

Property Law Act 1974 (Qld), s 283, s 289
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 225, r 374

Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167; [2000] EWCA Civ 200, cited
Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582; [1975] HCA 33, applied
Mango Boulevard P/L v Spencer & Ors[2010] QCA 207, applied

COUNSEL:

The appellant appeared on his own behalf
L Stephens, with N Hiscox, for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Alexander Law for the respondent

[1] MUIR JA:Introduction

The appellant appeals against an order of a judge of the trial division of this Court made on 16 July 2010 dismissing the appellant's originating application filed on 22 August 2007 for "A property adjustment order pursuant to section 283 Property Law Act1974 (Qld)". The grounds of appeal are "Unfair dismissal".

[2] In an affidavit filed on 2 January 2008 the respondent swore to the following. She and the appellant had a de facto relationship between January 2003 and April 2007. There were no children of the relationship. The appellant carried on business as a finance broker and financial consultant for a number of companies including Advanced Financial Consulting Pty Ltd, Advanced Home Loans Pty Ltd, Auswealth Financial Solutions Pty Ltd, Auswealth Enterprises Pty Ltd, Jamill Pty Ltd, KAE & Partners Pty Ltd and Majik Solutions Pty Ltd.

[3] During the relationship, the respondent purchased two residential properties without any financial contribution from the appellant, save for the provision to the respondent by the appellant of the amount of the deposit for a residential property at Marne Street, Alderley. The amount of the deposit was not stated but the purchase price was $270,000. At the time, the appellant owed the respondent $45,000.

Disclosure applications

[4] On 7 September 2009 the respondent filed an…

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 KAE v WAK

Details

AGLC: KAE v WAK [2010] QCA 327
Case: [2010] QCA 327
Decision Date: 23 November 2010

CaseChat Overview and Summary

The appeal before the court involved a dispute between KAE and WAK, who had previously been in a de facto relationship. The appellant, KAE, applied for a property adjustment order under section 283 of the Property Law Act 1974 (Qld) following the termination of their relationship. The respondent, WAK, argued that the appellant had failed to comply with disclosure obligations, leading the primary judge to dismiss the application. KAE appealed this decision, claiming that the dismissal was unjust and that the primary judge should have taken into account personal circumstances, a lack of knowledge of legal matters, and difficulties in accessing documents.

The legal issues before the court centred on whether the primary judge had erred in dismissing KAE's application for a property adjustment order and whether the failure to comply with disclosure obligations warranted such a dismissal. The court needed to assess whether the dismissal constituted an injustice and whether the primary judge had appropriately considered the appellant's submissions regarding personal circumstances and difficulties in accessing documents.

The court found that the primary judge's decision was not an error of law or an injustice. The appellant's failure to comply with disclosure obligations was a significant breach, and the primary judge had correctly dismissed the application. The court emphasised that the appellant's personal circumstances, lack of knowledge, and difficulties in accessing documents did not justify non-compliance. The appeal was dismissed with costs awarded against the appellant.

Orders

Orders of the court

The appeal be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	KAE v WAK [2010] QCA 327
PARTIES:	KAE (applicant/appellant) v WAK (respondent/respondent)
FILE NO/S:	Appeal No 7683 of 2010 SC No 7347 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 November 2010
DELIVERED AT:	Brisbane
HEARING DATE:	17 November 2010
JUDGES:	Muir and White JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal be dismissed with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – GENERALLY – appellant and respondent ended de facto relationship – appellant applied for a property adjustment order pursuant to s 283 Property Law Act 1974 (Qld) – appellant failed to comply with disclosure obligations – primary judge ordered appellant’s application be dismissed – appellant submitted failure to disclose was due to personal circumstances, ignorance of legal matters and inability to access documents – appellant submits application unfairly dismissed – whether primary judge erred in dismissing application Property Law Act 1974 (Qld), s 283, s 289 Uniform Civil Procedure Rules 1999 (Qld), r 5, r 225, r 374 Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167; [2000] EWCA Civ 200, cited Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582; [1975] HCA 33, applied Mango Boulevard P/L v Spencer & Ors[2010] QCA 207, applied
COUNSEL:	The appellant appeared on his own behalf L Stephens, with N Hiscox, for the respondent
SOLICITORS:	The appellant appeared on his own behalf Alexander Law for the respondent