KR v IJ - [2007] QDC 33

DISTRICT COURT OF QUEENSLAND

CITATION:

KR v IJ [2007] QDC 033

PARTIES:

KR

Applicant

V

IJ

Respondent

FILE NO/S:

D5/2004

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court of Queensland, at Emerald

DELIVERED ON:

7 March 2007; 20 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

7 and 8 February 2007; written submissions received from Applicant 15 February and Respondent 22 February 2007

JUDGE:

Alan Wilson SC, DCJ

ORDER:

IT IS DECLARED THAT:

1.          The Applicant have liberty to apply for a property adjustment order under the Property Law Act 1974 notwithstanding that she did not do so within the period stipulated in s.288(1)(a) of the Act.

2. Pursuant to s.317 of the Property Law Act 1974 that there was a de facto relationship between the Applicant and the Respondent between 1990 and 2000.

IT IS ORDERED THAT:

3.          On or before 13 April 2007 the Respondent shall:-

3.1.      Transfer to the Applicant the whole of his right, title and interest in the property situated at 17 Gidyea Street, Blackwater in the State of Queensland, being the whole of the land described as Lot 9 on Crown Plan B33736 County: Humboldt, Parish: Blackwater and comprised in Title Reference No. 30647237 (“the Blackwater property”).

3.2.      Discharge the liability outstanding to Westpac Banking Corporation in relation to the Dingo Digger and indemnify the Applicant with respect to that liability.

3.3.      Transfer to the Applicant his shares in Jacko’s Plumbing Pty Ltd.

4.          In exchange for the transfer and the liability discharge referred to in the preceding paragraph, the Applicant shall:-

4.1.      Bear all costs associated with the transfer of the Blackwater property, including legal costs, duties and charges.

4.2.      Discharge the liability outstanding to the Duaringa Shire Council in relation to rates and charges outstanding on the Blackwater property and indemnify the Respondent with respect to that liability.

4.3.      Discharge the liability outstanding to GE Credit in relation to the Nissan Patrol motor vehicle and indemnify the Respondent with respect to that liability.

4.4.      Discharge the liability to Simon Rankin the husband of the Applicant, in the sum of $43,113.00, or obtain a release by Simon Rankin of the Respondent as to any or any further liability, and indemnify the Respondent with respect to that liability.

5.          The Applicant and the Respondent otherwise retain the property in their respective possession at the date of this order.

6.          Costs reserved to a further order.

CATCHWORDS:

DE FACTO RELATIONSHIP – APPLICATION FOR PROPERTY ADJUSTMENT ORDERS UNDER PART 19 OF PROPERTY LAW ACT 1974 – APPLICATION OUT OF TIME – whether applicant should have leave to proceed under s 288(1)(b) of the Act

DE FACTO RELATIONSHIP – APPLICATION FOR PROPERTY ADJUSTMENT ORDERS UNDER PART 19 OF PROPERTY LAW ACT 1974 – whether orders for property adjustment should be made in applicant’s favour – nature of discretion arising under Part 19 of the Act – relevant factors – nature of orders

District Court of Queensland Act 1967

Property Law Act 1974, Part 19

Cases considered:
E…

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 KR v IJ

Details

AGLC: KR v IJ [2007] QDC 33
Case: [2007] QDC 33
Decision Date: 7 March 2007

CaseChat Overview and Summary

The case of KR v IJ involved an application by the Applicant for property adjustment orders under Part 19 of the Property Law Act 1974, which governs the division of property between parties in a de facto relationship. The Applicant sought relief against the Respondent, who was her former de facto partner, claiming that she was entitled to various assets as a result of their relationship. The dispute was heard by the court, which had to determine whether the Applicant should be granted leave to proceed with her application despite the statutory time limits, and if the Applicant was entitled to the requested property adjustment orders.

The primary legal issue before the court was whether the Applicant should be granted leave to apply for property adjustment orders under section 288(1)(b) of the Act, given that she had missed the statutory time limit for making such an application. The court also had to consider the appropriate exercise of its discretion under Part 19 of the Act in determining whether the Applicant was entitled to the requested property adjustment orders. The relevant factors included the nature of the de facto relationship, the contributions made by each party, and the fairness of the proposed orders.

In deciding the case, the court held that the Applicant was entitled to leave to apply for property adjustment orders under section 288(1)(b) of the Act, taking into account the unique circumstances of the case. The court considered the Applicant's delay in making the application and the Respondent's lack of prejudice as a result of that delay. The court then exercised its discretion under Part 19 of the Act and made orders for property adjustment in the Applicant's favour, including the transfer of certain assets and the discharge of specific liabilities. The court also ordered that certain costs and liabilities be borne by the Applicant in exchange for the transfer of assets.

The final orders of the court declared that the Applicant had leave to apply for property adjustment orders under the Property Law Act 1974, recognised the existence of a de facto relationship between the parties, and ordered the transfer of certain assets and the discharge of specific liabilities between the Applicant and the Respondent. The Applicant and the Respondent were also directed to bear certain costs and liabilities as part of the property adjustment. The court reserved the decision on costs to a further order.

Orders

Orders of the court

IT IS DECLARED THAT:

1. The Applicant have liberty to apply for a property adjustment order under the Property Law Act 1974 notwithstanding that she did not do so within the period stipulated in s.288(1)(a) of the Act.

2. Pursuant to s.317 of the Property Law Act 1974 that there was a de facto relationship between the Applicant and the Respondent between 1990 and 2000.

IT IS ORDERED THAT:

3. On or before 13 April 2007 the Respondent shall:-

3.1. Transfer to the Applicant the whole of his right, title and interest in the property situated at 17 Gidyea Street, Blackwater in the State of Queensland, being the whole of the land described as Lot 9 on Crown Plan B33736 County: Humboldt, Parish: Blackwater and comprised in Title Reference No. 30647237 (“the Blackwater property”).

3.2. Discharge the liability outstanding to Westpac Banking Corporation in relation to the Dingo Digger and indemnify the Applicant with respect to that liability.

3.3. Transfer to the Applicant his shares in Jacko’s Plumbing Pty Ltd.

4. In exchange for the transfer and the liability discharge referred to in the preceding paragraph, the Applicant shall:-

4.1. Bear all costs associated with the transfer of the Blackwater property, including legal costs, duties and charges.

4.2. Discharge the liability outstanding to the Duaringa Shire Council in relation to rates and charges outstanding on the Blackwater property and indemnify the Respondent with respect to that liability.

4.3. Discharge the liability outstanding to GE Credit in relation to the Nissan Patrol motor vehicle and indemnify the Respondent with respect to that liability.

4.4. Discharge the liability to Simon Rankin the husband of the Applicant, in the sum of $43,113.00, or obtain a release by Simon Rankin of the Respondent as to any or any further liability, and indemnify the Respondent with respect to that liability.

5. The Applicant and the Respondent otherwise retain the property in their respective possession at the date of this order.

6. Costs reserved to a further order.

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:	KR v IJ [2007] QDC 033
PARTIES:	KR Applicant V IJ Respondent
FILE NO/S:	D5/2004
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court of Queensland, at Emerald
DELIVERED ON:	7 March 2007; 20 March 2007
DELIVERED AT:	Brisbane
HEARING DATE:	7 and 8 February 2007; written submissions received from Applicant 15 February and Respondent 22 February 2007
JUDGE:	Alan Wilson SC, DCJ
ORDER:	IT IS DECLARED THAT: 1. The Applicant have liberty to apply for a property adjustment order under the Property Law Act 1974 notwithstanding that she did not do so within the period stipulated in s.288(1)(a) of the Act. 2. Pursuant to s.317 of the Property Law Act 1974 that there was a de facto relationship between the Applicant and the Respondent between 1990 and 2000. IT IS ORDERED THAT: 3. On or before 13 April 2007 the Respondent shall:- 3.1. Transfer to the Applicant the whole of his right, title and interest in the property situated at 17 Gidyea Street, Blackwater in the State of Queensland, being the whole of the land described as Lot 9 on Crown Plan B33736 County: Humboldt, Parish: Blackwater and comprised in Title Reference No. 30647237 (“the Blackwater property”). 3.2. Discharge the liability outstanding to Westpac Banking Corporation in relation to the Dingo Digger and indemnify the Applicant with respect to that liability. 3.3. Transfer to the Applicant his shares in Jacko’s Plumbing Pty Ltd. 4. In exchange for the transfer and the liability discharge referred to in the preceding paragraph, the Applicant shall:- 4.1. Bear all costs associated with the transfer of the Blackwater property, including legal costs, duties and charges. 4.2. Discharge the liability outstanding to the Duaringa Shire Council in relation to rates and charges outstanding on the Blackwater property and indemnify the Respondent with respect to that liability. 4.3. Discharge the liability outstanding to GE Credit in relation to the Nissan Patrol motor vehicle and indemnify the Respondent with respect to that liability. 4.4. Discharge the liability to Simon Rankin the husband of the Applicant, in the sum of $43,113.00, or obtain a release by Simon Rankin of the Respondent as to any or any further liability, and indemnify the Respondent with respect to that liability. 5. The Applicant and the Respondent otherwise retain the property in their respective possession at the date of this order. 6. Costs reserved to a further order.
CATCHWORDS:	DE FACTO RELATIONSHIP – APPLICATION FOR PROPERTY ADJUSTMENT ORDERS UNDER PART 19 OF PROPERTY LAW ACT 1974 – APPLICATION OUT OF TIME – whether applicant should have leave to proceed under s 288(1)(b) of the Act DE FACTO RELATIONSHIP – APPLICATION FOR PROPERTY ADJUSTMENT ORDERS UNDER PART 19 OF PROPERTY LAW ACT 1974 – whether orders for property adjustment should be made in applicant’s favour – nature of discretion arising under Part 19 of the Act – relevant factors – nature of orders District Court of Queensland Act 1967 Property Law Act 1974, Part 19 Cases considered: E…