Luong v Tran - [2005] VSC 431

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6141 of 2005

HAO CAN LUONG	Plaintiff
v
PHUOC THUAN TRAN	Defendant

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JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2005
DATE OF JUDGMENT:	9 November 2005
CASE MAY BE CITED AS:	Luong v Tran
MEDIUM NEUTRAL CITATION:	[2005] VSC 431

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De facto relationship – Jointly owned property – Application for leave to apply for an order for the adjustment of the parties’ interests in property – Relationship of 17 years – Application made seven years after separation – Agreement dealing with property matters – Long delay before execution by respondent – Whether agreement operative – Hardship – Property Law Act 1958 (Vic), Part IX, Division 2, s 282.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G W Robertson	Hicks & Oakley
For the Defendant	Mr B Guzzo	Francis Lhanh

HIS HONOUR:

This is an application for leave to apply for an order under Part IX, Division 2, of the Property Law Act 1958 (Vic) (“the Act”) for the adjustment of interests with respect to a house property at 91 Darnley Street, Braybrook, being the land more particularly described in certificate of title volume 9112 folio 816 (“the property”) of which the plaintiff and defendant are registered as joint proprietors.

The plaintiff, who is now aged 45 years, and the defendant, who is now aged 43 years, lived together as man and wife between about January 1981 and March 1998. Their relationship was a domestic relationship within the meaning of s 275(1) of the Act. Two children, being female twins, now aged 19 years, were born of the relationship on 27 June 1986.

The time within which the plaintiff should have commenced an application for an order under Division 2 of Part IX of the Act for an adjustment of interests in the property was within two years after the day when the domestic relationship ended. That is provided in s 282(1) of the Act. For present purposes it may be taken that the parties’ domestic relationship ended on 31 March 1998. Hence the plaintiff is now five years and some months out of time. The time to apply having thus passed, the plaintiff must obtain leave to apply out of time to be able to make a claim under Division 2. Provision for such leave is contained in s 282(2) which provides that a court may grant leave to a domestic partner to apply for an order after the end of the two year period “if the court is satisfied that greater hardship would be caused to the partner applying if that leave were not granted than would be caused to the other partner if that leave were granted”.

Originating Motion: the proceeding

In the originating motion, which was filed on 20 May 2005, the plaintiff sought only an order for a sale of the property pursuant to s 223 of the Act. That is, it was a…

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 Luong v Tran

Details

AGLC: Luong v Tran [2005] VSC 431
Case: [2005] VSC 431
Decision Date: 9 November 2005

CaseChat Overview and Summary

The case of Luong v Tran involved a dispute between two parties over the adjustment of their interests in a jointly owned property. The matter was heard by the Supreme Court of Victoria. The applicants, Luong and Tran, had been in a de facto relationship for 17 years, during which time they had entered into an agreement concerning their property matters. After their separation, Luong sought leave to apply for an order under the Property Law Act 1958 (Vic) to adjust the parties’ interests in the jointly owned property. The application was made seven years after their separation, and Tran had delayed in executing the agreement. The central legal issues before the court were whether the agreement was still operative and, if so, whether the long delay in execution by Tran amounted to hardship that would justify the court granting leave for Luong to apply for the adjustment of their interests in the property.

The court examined the nature and effect of the agreement between the parties and the circumstances surrounding its execution. It noted that the agreement had been in place for a significant period and that Tran had delayed in executing it for an extended time. The court considered the principles of equity and fairness, as well as the provisions of the Property Law Act 1958 (Vic), in determining whether the agreement was still valid and enforceable. The court also assessed whether Tran’s delay in executing the agreement constituted hardship for Luong, which would warrant the granting of leave for Luong to apply for the adjustment of their interests in the property. The court concluded that, despite the delay in execution, the agreement was still operative and that Tran’s delay did not amount to sufficient hardship to warrant the granting of leave. Therefore, the application for leave was dismissed.

The final orders of the court were that Luong’s application for leave to apply for an order for the adjustment of the parties’ interests in the jointly owned property was dismissed. The court held that the agreement between the parties remained valid and enforceable, notwithstanding the delay in its execution. It found that the delay did not constitute sufficient hardship to warrant the granting of leave. Consequently, the court did not grant Luong leave to pursue the adjustment of their interests in the property.

Orders