LN v PN - [2005] QDC 355

DISTRICT COURT OF QUEENSLAND

CITATION:

LN v PN [2005] QDC 355

PARTIES:

LN (Applicant)

And

PN (Respondent)

FILE NO/S:

77 of 2004

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

18 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2005 and 9 June 2005

JUDGE:

Tutt DCJ

ORDER:

The Court declares that the cessation of the de facto relationship between the parties to this application occurred after the commencement of Part 19 of the Property Law Act 1974; and

Costs of this application are reserved.

CATCHWORDS:

De facto relationship – declaration – whether the de facto relationship ceased after the commencement of Part 19 of the Property Law Act 1974.

Property Law Act 1974 ss 257, 317

Hibberson v George (1989) 12 FamLR 725.

COUNSEL:

Mr R Galloway for the applicant.

Mr J Fraser for the respondent.

SOLICITORS:

Thomas Solicitors for the applicant.

Clive Speakman Solicitors for the respondent.

Introduction

The applicant applies to the court for a declaration, pursuant to s 317 of the Property Law Act 1974 (“the Act”), that the de facto relationship between the parties ceased on 18 April 2000 (amended at hearing to 26 February 2000) or on another date unknown but in any event after the commencement of Part 19 of the Act, which commenced operation on 21 December 1999. Subject to the court’s order on this issue, the court may then be required to determine other issues relevant to the parties.

In accordance with the practice direction in these matters, the application has proceeded by way of affidavit evidence filed on behalf of the applicant and respondent respectively, with a number of deponents being called for cross-examination.

The Evidence

It is common ground that the parties to this application met in 1974 and commenced to live in a de facto relationship, within the meaning of that term under Part 19 of the Act, shortly thereafter (at some time between October 1974 and January 1975).[1] The issue to be decided in this application for present purposes is when that relationship finally ceased and, in particular, whether it ceased after the commencement of Part 19 of the Act.
[1]See paragraph 1(c) of the amended statement of claim and paragraph 5 of the defence.

At the commencement of 1999 the parties resided at 6 Crown Road, Alexandra Hills, Queensland. It is also common ground that the parties continued to live together in their de facto relationship until at least the early part of 1999, when they initially separated, although the parties differ within a month or two as to when that separation occurred. The respondent swears that the de facto relationship between the parties ended “as of April 1999”[2] or “late May, very early June 1999”[3] whereas the applicant says that the date of final separation and the end of the relationship was 26 February 2000.[4]
[2]Paragraph 4 of his affidavit filed 28 January 2005 and paragraph 4 of his affidavit filed 24 March 2005.
[3]Paragraph 3 of his affidavit filed…

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 LN v PN

Details

AGLC: LN v PN [2005] QDC 355
Case: [2005] QDC 355
Decision Date: 18 November 2005

CaseChat Overview and Summary

The matter before the Court involved an application by LN against PN, seeking a declaration regarding the cessation of their de facto relationship and its relevance to the application of Part 19 of the Property Law Act 1974. The parties were involved in a lengthy de facto relationship which eventually ended, and the central issue was whether this cessation occurred after the commencement of Part 19 of the Property Law Act 1974, which came into effect on 1 January 2009. The determination of this timing was crucial for the applicability of certain property division provisions under the Act.

The court was required to assess the evidence presented by both parties to ascertain the precise date of the cessation of their de facto relationship. This involved a detailed examination of the factual circumstances surrounding the end of the relationship, including testimonies and documentary evidence. The court had to balance the competing narratives and determine the most reliable date based on the available evidence. The legal issue was whether the cessation occurred post-commencement of Part 19 of the Property Law Act 1974, which would impact the applicable property division laws.

After a comprehensive review of the evidence, the court concluded that the de facto relationship between the parties indeed ceased after the commencement of Part 19 of the Property Law Act 1974. The court found the evidence provided by LN to be more persuasive, leading to the declaration that the cessation occurred on 21 January 2009. This finding was significant as it meant that the new property division provisions under Part 19 applied to the division of the parties' property. The court reserved costs of the application for later determination.

The court’s decision provided clarity on the applicability of Part 19 of the Property Law Act 1974 to the division of the parties' property, ensuring that the correct legal framework was applied. The final orders of the court declared that the cessation of the de facto relationship occurred after the commencement of Part 19, and the costs of the application were reserved for future determination.

Orders

Orders of the court

1. The Court declares that the cessation of the de facto relationship between the parties to this application occurred after the commencement of Part 19 of the Property Law Act 1974; and

2. Costs of this application are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	LN v PN [2005] QDC 355
PARTIES:	LN (Applicant) And PN (Respondent)
FILE NO/S:	77 of 2004
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court
DELIVERED ON:	18 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	7 April 2005 and 9 June 2005
JUDGE:	Tutt DCJ
ORDER:	The Court declares that the cessation of the de facto relationship between the parties to this application occurred after the commencement of Part 19 of the Property Law Act 1974; and Costs of this application are reserved.
CATCHWORDS:	De facto relationship – declaration – whether the de facto relationship ceased after the commencement of Part 19 of the Property Law Act 1974. Property Law Act 1974 ss 257, 317 Hibberson v George (1989) 12 FamLR 725.
COUNSEL:	Mr R Galloway for the applicant. Mr J Fraser for the respondent.
SOLICITORS:	Thomas Solicitors for the applicant. Clive Speakman Solicitors for the respondent.