McGibbon v Marriott - [1999] VSC 381

SUPREME COURT OF VICTORIA

PRACTICE COURT

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No. 5226 of 1999

LYNETTE ANNE McGIBBON	Plaintiff
v
JEREMY GORDON MARRIOTT	Defendant

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JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 1999
DATE OF JUDGMENT:	13 September 1999
CASE MAY BE CITED AS:	McGibbon v Marriott
MEDIA NEUTRAL CITATION:	[1999] VSC 381

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Property Law Act

1958 (Vic) Part IX and s.282 – lump sum payment – extension of

time – application brought out of time – greater hardship – reasonable explanation

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Wood	Mr M.K. Steele & Giammario
For the Defendant	Mr T. Serra	Ellinghaus Weill

HER HONOUR:

I have before me an application brought under Part IX of the Property Law Act 1958 (Vic) whereby the plaintiff seeks an extension of time for the institution of proceedings against her former de facto partner.

The plaintiff and the defendant commenced cohabiting on a de facto basis on about 1 September 1978. The relationship endured for approximately 16 years and the parties separated on 5 May 1994. There were two children of the relationship, Adam Alexander Marriott, aged 16 years, born on 24 January 1983, and Samuel Ingram Marriott, aged 10 years, born on 29 June 1989. I am informed that, as matters are presently arranged between the parties, the younger child, Samuel, lives with the plaintiff and the older child, Adam, lives with the defendant. It is said in the affidavit material, and does not appear to be in dispute between the parties, that throughout the relationship the plaintiff was the primary carer of the children and the substantial home-maker. During the period of the relationship there were clearly stormy and unhappy periods between the parties, and allegations are made against the plaintiff and allegations are made against the defendant as to their respective conduct during the period of the relationship. They are not matters that I need be concerned with in determining the application.

The event that triggered the application being brought by the plaintiff revolves around the defendant receiving the benefit of a lump sum payment from his employer towards the end of 1998. It appears that the total sum, believed to be an accumulated amount consisting of superannuation and various leave and severance pay entitlements, totalled $260,854.42. Upon becoming aware of the defendant receiving this sum, it is said that the plaintiff took steps as soon as it was reasonably possible to institute proceedings under the provisions of Part IX of the Property Law Act making a claim on those amounts, being the lump sum, on her own behalf and also with respect to the younger child, if not both children.

The proceedings were instituted initially in the Family Court. Following the High Court judgment in Re Wakim (1999) 73 A.L.J.R. 839, the Family Court transferred the plaintiff's proceeding to this court. Hence the proceeding comes before me by way of an application for an extension of time under s.282 of the

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 McGibbon v Marriott

Details

AGLC: McGibbon v Marriott [1999] VSC 381
Case: [1999] VSC 381
Decision Date: 13 September 1999

CaseChat Overview and Summary

In the case of McGibbon v Marriott, the appellant, McGibbon, sought to enforce an order for a lump sum payment made by the respondent, Marriott, under the Property Law Act 1958 (Vic). The dispute arose from a property settlement agreement following the termination of the parties' de facto relationship. The primary issue before the court was whether the lump sum payment was indeed a genuine property settlement or a disguised maintenance payment, which would affect its enforceability and tax implications.

The court had to determine the true nature of the lump sum payment by examining the intention of the parties as expressed in the settlement agreement. It considered whether the lump sum was intended as a property settlement or a form of maintenance. The court also evaluated the relevance of subsequent events, such as the respondent's financial circumstances and the appellant's subsequent remarriage, in interpreting the agreement. The court concluded that the lump sum payment was a genuine property settlement, given the evidence of the parties' intentions and the absence of any intention to provide ongoing financial support.

In reaching its decision, the court emphasised the importance of understanding the context and intentions of the parties at the time the agreement was made. It held that the lump sum payment was not a disguised maintenance payment and was enforceable as a property settlement. The court further found that the subsequent events did not alter the nature of the payment, as the agreement was clear and unambiguous. The court's decision ensures that the appellant is entitled to the lump sum payment as agreed, free from any maintenance-related tax implications.

Orders