M v W (No. 2)

Case [2009] QDC 344


DISTRICT COURT OF QUEENSLAND

CITATION:

M v W (No. 2) [2009] QDC 344

PARTIES:

M

(Plaintiff)

v

W

(Defendant)

FILE NO/S:

BD3785 of 2004

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

10 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2009, written submissions received to 20 October 2009

JUDGE:

Robin QC DCJ

ORDER:

Application dismissed

CATCHWORDS:

Property Law Act 1974 s 255, s 333, s 334, s 341

Uniform Civil Procedure Rules, r 666, r 668

Application to set aside a consent order for property adjustment between former de facto partners – consent order silent as to costs, notwithstanding that costs orders against the applicant had been made, in respect of which he subsequently proceeded to assessment – applicant contended the compromise underlying the consent order included costs, alternatively was no true compromise – alternatively, if the costs orders remained enforceable, it was asserted that the property adjustment should be set aside as not just and equitable.

COUNSEL:

D Gordon for the Applicant / Defendant

V Brennan for the Respondent / Plaintiff

SOLICITORS:

Reaburn Solicitors for the Applicant / Defendant

Barry & Nilsson Lawyers for the Respondent / Plaintiff

  1. Before the Court is the defendant’s application for orders that:

“1.The Consent Order entered on behalf of the Plaintiff against the Defendant on 12 June 2009 be set aside pursuant to Rule 668 of the Uniform Civil Procedure Rules 1999 (Qld).

(a)The Applicant Defendant be relieved from the effect of any costs of the Court made on the 2 June 2008, 14 November 2008 and 30 January 2009 pursuant to Rule 668 of the Uniform Civil Procedure Rules 1999 (Qld).

2.In the alternative, the Consent Order entered on behalf of the Respondent Plaintiff against the Applicant on 12 June 2009 be set aside pursuant to the Court’s jurisdiction to set aside judgments made without jurisdiction.

(a)       That the claim be reopened.

(b)That the parties hold a mediation conference within twenty eight (28) days from the date of this Order.

3.The Respondent Plaintiff pay the costs of the Applicant of the Application.”

  1. The underlying claim filed five years ago on 21 October 2004 was brought under Part 19 of the Property Law Act 1974 seeking a declaration as to the existence of a de facto relationship between the parties and by way of property adjustment payment to him of $200,000 and the vesting in him of a business, motor vehicle and AMP shares (already his) valued at $11,300 in aggregate.  A relationship began in Victoria in December 1997, long before the enactment of Part 19; there were disruptions, the precise details and effect of which the parties disagree about.  The parties removed to Queensland and agree that the relationship came to an end just short of five years along.  On the pleadings there were issues as to this court’s jurisdiction based on subsistence of the relationship.

  1. The defendant’s financial circumstances appear to have been superior to the plaintiff’s; the disparity increased when she received…

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AGLC
M v W (No. 2) [2009] QDC 344
Case
[2009] QDC 344
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of M v W (No. 2) involved an application by the applicant, M, to set aside a consent order for property adjustment between the parties, who were former de facto partners. The application was made on the basis that the consent order was silent regarding the costs of the proceedings, despite there being prior orders for costs against the applicant. The applicant had already undergone assessment of these costs and contended that the compromise underlying the consent order included the costs, or alternatively, that there was no true compromise. If the costs orders remained enforceable, the applicant further argued that the property adjustment should be set aside as not just and equitable.

The legal issues before the court included whether the consent order, which was silent on costs, could be set aside, and if so, under what circumstances. The applicant needed to demonstrate that there was no true compromise or that the order was not just and equitable, particularly in light of the costs orders that were still outstanding against them. The court had to consider the principles of finality of litigation and the circumstances under which a consent order may be set aside. It was also necessary to determine whether the compromise reached was indeed comprehensive and if the costs were implicitly included in the terms of the agreement.

The court found that the consent order, despite being silent on costs, did not include the costs as part of the compromise. It was held that the order was not void or voidable on the grounds that it did not address the costs, as there was no evidence to suggest that the parties intended to include the costs in the agreement. Furthermore, the court concluded that the compromise was true and that the order was just and equitable, as it reflected the parties' intentions at the time of the agreement. The application was dismissed, and the orders were not varied or set aside.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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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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