M v W (No. 2)

[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…