DISTRICT COURT OF QUEENSLAND
CITATION:
MJS v AJH [2021] QDC 287
PARTIES:
MJS
(applicant)
v
AJH
(respondent)
FILE NO: 105 of 2021
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court at Cairns
DELIVERED ON:
23 November 2021
DELIVERED AT:
Cairns
HEARING DATE:
1 October 2021; supplementary outlines of submissions filed by leave 5 and 7 October 2021.
JUDGE:
Fantin DCJ
ORDER:
1. I will hear submissions from the parties on appropriate orders reflecting these reasons.
2. Costs reserved.
CATCHWORDS:
REAL PROPERTY – PARTITION OF LAND -STATUTORY TRUST FOR SALE OR PARTITION – where former de facto spouse applied for appointment of trustees for the sale of land pursuant to s 38 Property Law Act 1974 (Qld) – where property is held by the parties as tenants in common in equal shares – where respondent cross-applied for leave to apply out of time for a property adjustment order pursuant to Part 19 Property Law Act 1974 (Qld) and also filed proceeding pursuant to Family Law Act for de facto property settlement – whether proceeding should be stayed or adjourned pending determination of those proceedings
FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROERTY INTERESTS – where former de facto spouse applied for leave to apply for property adjustment order pursuant to Part 19 of Property Law Act 1974 (Qld) – whether more than two years have elapsed since relationship ceased – whether applicant has sufficient explanation for delay – whether applicant would suffer “hardship” if denied leave to apply
LEGISLATION:
Family Law Act 1975 (Cth) s 4AA, s 4, s 39, s 39A(5), s 44(5), s 44(6), s 90RC, s 90SS, s 90SL
Property Law Act 1974 (Qld) s 38, s 255A, s 255(c)
s 258, s 282, s 283, s 286, s 288(1), s 288(2), s 289, Pt 19
Uniform Civil Procedure Rules 1999 (Qld) r 283CASES: Coleman v Penfold [2019] QCA 98
SAM v IDP [2007] 2 Qd R 456
Bannister & Pergolesi [2018] FamCA 888
Ranger v Ranger [2009] QCA 226
Ex parte Eimbart Pty Ltd [1982] Qd R 398
CL v JMG [2007] QSC 169
Green v Johnston [2015] QSC 81
Simonidis Steel Lawyers Brisbane Pty Ltd v Johnston & Ors
Williams v Williams (1979) 1 NSWLR 376
National Australia Bank v Pasupati [2011] NSWSC 540
Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318COUNSEL:
C Ryall for the applicant
J Blackburn (sol) for the respondent
SOLICITORS: Bolt Burchill & Tranter for the applicant
Gayler Cleland for the respondent
Introduction
The applicant, MJS, is 75 years old. She owns a house at Wonga Beach, south of Daintree (the property), as tenant in common in equal shares with AJH, who is 65 years old. The parties were in a de facto relationship from 1976 until at least 2006. There is a dispute about exactly when that relationship ended. There is no dispute that they are…
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- AGLC
- MJS v AJH [2021] QDC 287
- Case
- [2021] QDC 287
- Decision Date
CaseChat Overview and Summary
The court held that filing an application for de facto property orders in the Federal Circuit Court did not remove its jurisdiction to hear an application under section 38 of the PLA. However, the court's discretion to stay the s 38 application pending the FLA proceedings would be influenced by the timing and relevance of the FLA application. The court found it premature to decide this issue at that stage. The decision referenced previous cases that affirmed the court's jurisdiction to hear such matters even if related proceedings were ongoing.
The court decided to hear the parties' submissions on orders that would reflect the reasons for judgment. The orders would direct the listing of preliminary issues for hearing on the earliest available date and the adjournment of the applicant's application pending the determination of those issues. Additionally, the court reserved the costs of both parties' applications. The supplementary submissions filed by the respondent's solicitor after the hearing were deemed improper as they were submitted without leave, and the court had not granted such leave. The court emphasized that parties must adhere to the rules governing the submission of evidence and written arguments, highlighting that there is no legal right to continue presenting such materials after the conclusion of the hearing.
The court made orders to hear the parties' submissions on appropriate orders reflecting the reasons for judgment, reserving costs in the process.
Orders
Orders of the court
1. I will hear submissions from the parties on appropriate orders reflecting these reasons.
2. Costs reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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