Lupton v Hodge

[2004] QDC 152

DISTRICT COURT OF QUEENSLAND

CITATION:

Lupton v Hodge [2004] QDC 152

PARTIES:

WAYNE NORMAN LUPTON

Plaintiff

and

COLLEEN MARGARET HODGE

Defendant

FILE NO:

138 of 2003

PROCEEDING:

Claim for adjustment of former de facto partners’ property interests

ORIGINATING COURT:

District Court Southport

DELIVERED ON:

 9 March 2004

DELIVERED AT:

Southport

HEARING DATE:

5 & 6 February 2004

JUDGE:

Robin QC DCJ

ORDER:

Defendant to pay plaintiff $120,000.00 for cancellation of his interest in subject property

CATCHWORDS:

Property Law Act 1974 s 286 – adjustment of interests of former de facto partners

Cases cited:

Daniel v Rickett, Cockerell & Co Ltd [1938] 2KB 32
Re Kurilpa Protestant Hall Pty Ltd [1946] State Reports Queensland 171, 183
Sandhurst Trustees Ltd v Condah Bay Investments Pty Ltd [2003] QDC 438

Sullman v Sullman [2002] NSWSC 169

COUNSEL:

Ms Spence for the Plaintiff   
Mr McGregor for the Defendant

SOLICITORS:

Evans & Company for the Plaintiff   
Raeburn Solicitors for the Defendant

1. Both the claim and counterclaim in this proceeding seek relief under part 19 of the Property Law Act 1974 (the Act), in particular under s 286, subsection (1) of which provides that the court may make any order it considers just and equitable about the property of either or both of de facto spouses adjusting their property interests. The plaintiff, Mr Lupton, was first to court, filing his claim on 26^th March 2003.  The claim sought the following orders:

“a.   That the Defendant pay to the plaintiff the sum of $120,000.00.

b.An Order that upon the Defendant paying the sum referred to in paragraph 1 hereof, that she retain as her sole property and be declared solely entitled to possession and ownership of:-

i.The real property at 11 Samuel Court, Jacobs Well in the State of Queensland;

ii.The furniture, bank deposits, investments and chattels in the possession of the Defendant; and

iii.The superannuation, long service leave, holiday leave entitlements, accrued sick leave and all other financial resources of the Defendant.

c.An Order that the Plaintiff retain as his sole property and be declared solely entitled to possession and ownership of:-

i.The furniture and chattels in the possession  of the Plaintiff; and

ii.The superannuation, bank deposits, investments and employment entitlements in the possession of the Plaintiff.

d.An Order that the Defendant pay the Plaintiff’s costs of and incidental to these proceedings pursuant to Section 341(2) of the Property Law Act 1974 (Qld).”

1. For some reason the statement of claim sought payment of $105,000.00 only, but an amendment increased the claim to $220,000.00. 

1. The Jacobs Well property is in the name of Ms Hodge, the defendant.  She learned from the Registrar of Titles’ letter of 7 February 2002 of the lodgement of a caveat by Mr Lupton claiming “An equitable interest and a legal interest in and to the land” and entitlement to orders pursuant to Part 19; on 30^th May 2002, after the obtaining of an appropriate District Court order the previous day (which           Ms Hodge and/or her then lawyers,…