KDC v KAP

[2019] QDC 160

DISTRICT COURT OF QUEENSLAND

CITATION:

KDC v KAP [2019] QDC 160

PARTIES:

KDC
(applicant)

v

KAP
(respondent)

FILE NO/S:

D9/19

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

30 August 2019

DELIVERED AT:

District Court at Beenleigh

HEARING DATE:

01 August 2019

JUDGE:

Chowdhury DCJ

ORDER:

1. Both the applicant and respondent are granted leave pursuant to s 288(2) of the Property Law Act 1974 (Qld) to apply for a property adjustment order.

CATCHWORDS:

FAMILY LAW - DE FACTO RELATIONSHIP – PROPERTY ADJUSTMENT ORDER – APPLICATION – where de facto partner sought leave to apply for a property adjustment order under Pt 19 of the Property Law Act 1974 (Qld) – where application has been brought significantly outside of the two year limitation period – whether the applicant would suffer hardship if denied leave to apply – whether discretion to grant leave to apply should be exercised

Property Law Act 1974 (Qld) s 282(1), s 283, s 286, s 287, s 288(2)

Family Law Act 1975 (Cth) s 44(4)

AC v CM [2010] QSC 384

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

D v D [2007] QSC 131

DA v KG & Anor [2010] QSC 318

FLC v AJO [2012] QSC 21

HT v CS [2009] QSC 051

In the Marriage of Jacenko (1986) 11 Fam LR 341; (1986) FLC 91-776

In the Marriage of Neocleous (1993) 16 Fam LR 557

SAM v IDP [2007] 2 Qd R 456

COUNSEL:

S. Lamb for the applicant

G. Sara for the respondent

SOLICITORS:

Jeff Horsey Solicitors for the applicant

Guy Sara and Associates for the respondent

1. By way of originating application filed on 5 June 2019, the applicant seeks, relevantly, the following orders:

1.          A declaration that the respondent holds the whole of her share in 3 Benjul Drive, at Beenleigh, on constructive trust and in favour of the applicant.

2.          An order that the respondent take all necessary steps to transfer her interest in 3 Benjul Drive, at Beenleigh, to the applicant. 

3.          Further, or in the alternative:

(a) Leave to apply for a property adjustment order under part 19 Property Law Act 1974 (Qld) (“PLA”) pursuant to s 288(1)(b) of the PLA;

(b)        An order that the parties property interest be adjusted with the applicant being entitled to the entirety of 3 Benjul Drive at Beenleigh, or such proportions as determined by the court.

1. At the hearing on 1 August 2019, submissions focused on whether leave should be granted to the applicant pursuant to s 288(1)(b) of the Property Law Act 1974 (“the Act”), as no leave was necessary for the applicant to seek an equitable remedy.[1] The respondent opposed the granting of any leave under the Act.

   [1]R1-6, l 10. 

Background facts to the application

1. On 30 August 2018, I made an order granting the application of the respondent for appointment of trustees for sale under s 38 of the Act. On 12 April 2019, the Court of…