LF v RA - [2005] QSC 375

SUPREME COURT OF QUEENSLAND

CITATION:

LF v RA [2005] QSC 375

PARTIES:

LF
(applicant)
v
RA
(respondent)

FILE NO/S:

BS No 3070 of 2004

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

24 November 2005

JUDGE:

White J

ORDER:

1.      Declare that the parties hold:

(a)     the Mudgeeraba property as tenants in common as to 9/10^th share to the respondent and 1/10^th share to the applicant; and

(b)    the Surfers Paradise unit as tenants in common as to 9/10^th share held by the respondent and 1/10^th share by the applicant.

2. That a Property Adjustment Order be made pursuant to s 286 of the Property Law Act 1974 in respect of the property situated at Robina such that the applicant and respondent each hold the property as tenants in common in equal shares.

3.      That within 14 days of the day of these Orders, the respondent, RA shall pay the sum of $184,817.22 to the applicant, LF such payment to be made by way of bank cheque made payable to the Trust Account of the solicitors for the applicant, Messrs Primrose Couper Cronin Rudkin, Scarborough Street, Southport.

4.      That contemporaneously with the payment of $184,817.22 referred to in Order 1 herein, the applicant, LF shall sign all necessary documents and do all necessary things to transfer to the respondent all her right, title and interest in the following real property:

(a) the Robina property;

(b) the Mudgeeraba property;

(c) the Surfers Paradise unit.

(collectively “the real property”)

Provided that the respondent shall contemporaneously refinance the existing mortgages secured by the real property and discharge the debt owed to the body corporate of the Burra Street property by way of body corporate fees and legal costs associated with the action taken by the body corporate against the applicant and the respondent so as to released the applicant from all liability pursuant to those mortgages, body corporate fees and legal costs and pending the transfer to the respondent of the applicant’s interest in the said real property he shall indemnify the applicant and keep her indemnified in relation to any liability pursuant to the mortgages secured by the real property and any outstanding rates and/or body corporate fees owing in relation to the real property.

5.      That for the purposes of putting Order 4 into effect, the solicitors for the respondent shall draw the necessary Transfer documentation.

6.      That the respondent shall retain all his right, title and interest in the real property.

7.      That each party sign all necessary documents and do all necessary things in order to give effect to the terms of these Orders and in the event of either party failing or refusing to do so, then the Registrar of the Supreme Court of Queensland is hereby authorised to sign all necessary documents and do all necessary things on behalf of the parties.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO…

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 LF v RA

Details

AGLC: LF v RA [2005] QSC 375
Case: [2005] QSC 375
Decision Date: 22 December 2005

CaseChat Overview and Summary

In the case of LF v RA, the Queensland Supreme Court was asked to determine the property interests of the parties, LF and RA, following their separation after a de facto relationship. The dispute centred on the validity of a cohabitation agreement, which had been drafted by RA's solicitors, and the subsequent conduct of the parties that led LF to seek an adjustment of their property interests under the Property Law Act 1974. LF argued that the agreement was not binding due to her medical condition at the time it was signed and that RA's conduct post-agreement constituted a revocation of the agreement or amounted to serious injustice. The court was required to determine whether the agreement was binding, whether it could be set aside due to non est factum or subsequent conduct, and whether a just and equitable adjustment of property interests was warranted under the Act.

The court examined the circumstances surrounding the creation of the cohabitation agreement and found that LF had not participated in any discussion about it and had not read the documentation. Despite this, there was no evidence of deception on RA's part. The court considered the possibility of setting aside the agreement on the grounds of non est factum, which was rejected as LF's condition did not render the agreement so fundamentally different from what she believed it to be. The court also considered RA's conduct post-agreement, including increasing a mortgage debt that was LF's sole responsibility, but found that this did not amount to a revocation or constitute serious injustice sufficient to set aside the agreement. Given the unequal ownership of the properties and LF's contribution to the assets and ongoing liabilities, the court found that a just and equitable adjustment of property interests was necessary.

The court ordered that the parties hold specified properties as tenants in common, with LF receiving a financial adjustment to compensate for the unequal distribution of assets. The court also ordered that RA pay a sum of money to LF and that RA refinance the mortgages on the properties to release LF from any liability. The court further directed that the necessary documents be signed and executed to effect the transfer of LF's interest in the properties to RA and that RA indemnify LF against any ongoing liabilities associated with the properties until the transfer was complete. These orders were made to ensure a fair and equitable adjustment of the parties' property interests in light of the circumstances of their separation.

Orders

Orders of the court

1. Declare that the parties hold:

(a) the Mudgeeraba property as tenants in common as to 9/10th share to the respondent and 1/10th share to the applicant; and

(b) the Surfers Paradise unit as tenants in common as to 9/10th share held by the respondent and 1/10th share by the applicant.

2. That a Property Adjustment Order be made pursuant to s 286 of the Property Law Act 1974 in respect of the property situated at Robina such that the applicant and respondent each hold the property as tenants in common in equal shares.

3. That within 14 days of the day of these Orders, the respondent, RA shall pay the sum of $184,817.22 to the applicant, LF such payment to be made by way of bank cheque made payable to the Trust Account of the solicitors for the applicant, Messrs Primrose Couper Cronin Rudkin, Scarborough Street, Southport.

4. That contemporaneously with the payment of $184,817.22 referred to in Order 1 herein, the applicant, LF shall sign all necessary documents and do all necessary things to transfer to the respondent all her right, title and interest in the following real property:

(a) the Robina property;

(b) the Mudgeeraba property;

(collectively “the real property”)

Provided that the respondent shall contemporaneously refinance the existing mortgages secured by the real property and discharge the debt owed to the body corporate of the Burra Street property by way of body corporate fees and legal costs associated with the action taken by the body corporate against the applicant and the respondent so as to released the applicant from all liability pursuant to those mortgages, body corporate fees and legal costs and pending the transfer to the respondent of the applicant’s interest in the said real property he shall indemnify the applicant and keep her indemnified in relation to any liability pursuant to the mortgages secured by the real property and any outstanding rates and/or body corporate fees owing in relation to the real property.

5. That for the purposes of putting Order 4 into effect, the solicitors for the respondent shall draw the necessary Transfer documentation.

6. That the respondent shall retain all his right, title and interest in the real property.

7. That each party sign all necessary documents and do all necessary things in order to give effect to the terms of these Orders and in the event of either party failing or refusing to do so, then the Registrar of the Supreme Court of Queensland is hereby authorised to sign all necessary documents and do all necessary things on behalf of the parties.

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:	LF v RA [2005] QSC 375
PARTIES:	LF (applicant) v RA (respondent)
FILE NO/S:	BS No 3070 of 2004
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	24 November 2005
JUDGE:	White J
ORDER:	1. Declare that the parties hold: (a) the Mudgeeraba property as tenants in common as to 9/10^th share to the respondent and 1/10^th share to the applicant; and (b) the Surfers Paradise unit as tenants in common as to 9/10^th share held by the respondent and 1/10^th share by the applicant. 2. That a Property Adjustment Order be made pursuant to s 286 of the Property Law Act 1974 in respect of the property situated at Robina such that the applicant and respondent each hold the property as tenants in common in equal shares. 3. That within 14 days of the day of these Orders, the respondent, RA shall pay the sum of $184,817.22 to the applicant, LF such payment to be made by way of bank cheque made payable to the Trust Account of the solicitors for the applicant, Messrs Primrose Couper Cronin Rudkin, Scarborough Street, Southport. 4. That contemporaneously with the payment of $184,817.22 referred to in Order 1 herein, the applicant, LF shall sign all necessary documents and do all necessary things to transfer to the respondent all her right, title and interest in the following real property: (a) the Robina property; (b) the Mudgeeraba property; (c) the Surfers Paradise unit. (collectively “the real property”) Provided that the respondent shall contemporaneously refinance the existing mortgages secured by the real property and discharge the debt owed to the body corporate of the Burra Street property by way of body corporate fees and legal costs associated with the action taken by the body corporate against the applicant and the respondent so as to released the applicant from all liability pursuant to those mortgages, body corporate fees and legal costs and pending the transfer to the respondent of the applicant’s interest in the said real property he shall indemnify the applicant and keep her indemnified in relation to any liability pursuant to the mortgages secured by the real property and any outstanding rates and/or body corporate fees owing in relation to the real property. 5. That for the purposes of putting Order 4 into effect, the solicitors for the respondent shall draw the necessary Transfer documentation. 6. That the respondent shall retain all his right, title and interest in the real property. 7. That each party sign all necessary documents and do all necessary things in order to give effect to the terms of these Orders and in the event of either party failing or refusing to do so, then the Registrar of the Supreme Court of Queensland is hereby authorised to sign all necessary documents and do all necessary things on behalf of the parties.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO…