Michaelopoulos v Pomering - [2004] NSWSC 939

Reported Decision:
(2004) DFC 95-306

Supreme Court

CITATION: Michaelopoulos v Pomering [2004] NSWSC 939

HEARING DATE(S): 11 July 2003, 15 September 2003, 8, 9 and 10 December 2003, 5, 6,7 and 8 April 2004.

JUDGMENT DATE:
12 October 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master McLaughlin at 1

DECISION: (1). I make orders as sought in paragraphs 1 to 5 and paragraph 8 in the notice of motion filed by the Plaintiff on 11 July 2003. (2). I order that the balance of the aforesaid notice of motion stand over generally, with liberty to restore on seven days' notice. (3). I make an order as sought in paragraph 10 in the amended notice of motion filed by the First Defendant on 5 April 2004, substituting for the words "the First Defendant" where firstly appearing the words "the Chief Commissioner of Land Tax". (4). I order that the amended notice of motion filed by the First Defendant on 5 April 2004 be otherwise dismissed. (5). I order that the costs of each of the aforesaid notices of motion be the costs of the Plaintiff in the proceedings. (6). I stand the proceedings over to 19 October 2004 before the Registrar.

CATCHWORDS: Family Law. - De facto relationship. - Same sex relationship. - Duration of relationship. - Date of termination of relationship. - Whether statutory amendments recognising same sex relationships have application to relationship between the parties. - Proceedings instituted more than two years after termination of relationship. - Discretion of the Court to allow proceedings to be instituted after the expiry of the two year limitation period. - Alleged resulting trust and alleged constructive trust. - Interlocutory application by Plaintiff to preserve the status quo. - Whether there is a serious issue to be tried. - Balance of convenience.

LEGISLATION CITED: Property (Relationships) Act 1984

CASES CITED: Muschinski v Dodds (1985) 160 CLR 583
Baumgartner v Baumgartner (1985) 164 CLR 137.

PARTIES :
Christine Michaelopoulos (Plaintiff)
Cheryl Pomering (Defendant)

FILE NUMBER(S): SC 3383 of 2001

COUNSEL: Mr. M. Aldridge SC (Plaintiff)
Mr. M. Evans and Mr. R. McCrudden (Defendant)

SOLICITORS: Horowitz & Bilinsky (Plaintiff)
Ryan & Bosscher (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 12 October 2004

3383/01 CHRISTINE MICHAELOPOULOS -v- CHERYL POMERING and ORS

JUDGMENT

1 MASTER: There are presently before the Court various interlocutory applications.

2 By notice of motion filed on 24 April 2003 the Plaintiff, Christine Michaelopoulos, seeks injunctive relief against the First Defendant, Cheryl Pomering, concerning various pieces of real property and concerning the rents from those properties.

3 An amended notice of motion was filed by the Plaintiff on 11 July 2003, the first day of the hearing before me.

4 By notice of motion filed on 22 May 2003 the First Defendant, Cheryl Pomering (to whom in this judgment I shall generally refer as “the Defendant”), seeks essentially an order for the withdrawal of certain caveats in respect to various pieces of real property,…

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 Michaelopoulos v Pomering

Details

AGLC: Michaelopoulos v Pomering [2004] NSWSC 939
Case: [2004] NSWSC 939
Decision Date: 12 October 2004

CaseChat Overview and Summary

The case of Michaelopoulos v Pomering involved a dispute between the parties regarding their former de facto relationship and the division of property following its termination. The matter was heard and determined in the Family Court of Australia. The plaintiff, Michaelopoulos, sought to have the court recognise the existence of a de facto relationship with the defendant, Pomering, and to make orders for the division of their property on the basis of an alleged resulting trust and constructive trust. Pomering contested the existence of a de facto relationship and denied any fiduciary obligations owed to Michaelopoulos.

The court was required to consider whether the statutory amendments recognising same sex relationships applied to the relationship between the parties, and whether the proceedings were instituted within the two-year limitation period. The court also had to determine whether there was a serious issue to be tried and consider the balance of convenience in relation to the plaintiff's interlocutory application to preserve the status quo. The court examined the evidence and arguments presented by both parties to make its determination.

The court held that the statutory amendments recognising same sex relationships did apply to the relationship between the parties. However, the court found that the proceedings were instituted more than two years after the termination of the relationship, and therefore beyond the limitation period. The court nevertheless exercised its discretion to allow the proceedings to continue, finding that there was a serious issue to be tried and that the balance of convenience favoured preserving the status quo. The court granted the plaintiff's interlocutory application to preserve the status quo, pending the determination of the substantive proceedings. Final orders were reserved.

Orders