Latham and Dillon and Anor

This matter concerned an application before Judge Howard. The parties, Latham and Dillon and an Anor, were engaged in a dispute regarding property settlement.

The court was required to determine whether it was just and equitable to make a property settlement order under section 79 of the relevant Act. This involved considering the existing legal and equitable interests of the parties in the property and whether those interests should be altered. The court also had to consider whether the power to make such an order was being exercised in accordance with established legal principles, rather than by unguided judicial discretion or assumptions about the division of marital property.

Judge Howard's reasoning, drawing on High Court authority, emphasised that the determination of whether an order is "just and equitable" requires an initial identification of the parties' existing legal and equitable interests. The court's broad power under section 79 is not unfettered but must be exercised according to legal principles, not by "palm tree justice" or assuming a right to property division. The court must avoid conflating the requirements of section 79(2) with the factors listed in section 79(4), ensuring a separate consideration of the just and equitable threshold.

The court made orders requiring each party to provide a proposed Final Order to the other by 9 April 2015, and to attempt to reach an agreed position by 16 April 2015. If agreement was not reached, the matter was to be listed for mention, with personal attendance required by both parties and their legal representatives.