MJS v AJH - [2021] QDC 287

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 283

CASES: 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 318

COUNSEL:

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…

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 MJS v AJH

Details

AGLC: MJS v AJH [2021] QDC 287
Case: [2021] QDC 287
Decision Date: 23 November 2021

CaseChat Overview and Summary

In the matter of MJS v AJH, the parties, former de facto spouses, were involved in a dispute regarding the partition of land. The applicant sought the appointment of trustees for the sale of land under section 38 of the Property Law Act 1974 (Qld), while the respondent applied for leave to apply out of time for a property adjustment order under Part 19 of the same Act and filed proceedings for de facto property settlement under the Family Law Act. The central legal issue was whether the court should stay or adjourn the s 38 application pending the determination of the Family Law Act proceedings.

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

Where an application for de facto property orders is filed in the FCA, that does not remove this court’s jurisdiction to deal with an application under s 38 PLA. But it will be relevant to whether (as a matter of discretion) the s 38 application should be stayed pending determination of any FLA proceedings.[25] It is premature to determine that issue at this stage.[25] Simonidis Steel Lawyers Brisbane Pty Ltd v Johnston & Ors; Green v Johnston [2015] QSC 81, 5 and 6 citing Williams v Williams (1979) 1 NSWLR 376, National Australia Bank v Pasupati [2011] NSWSC 540 to the effect even if there had been such proceedings on foot the Court would still have had jurisdiction to hear this matter.Conclusion and orders I will hear the parties’ submissions on orders reflecting these reasons for judgment. The orders should provide for directions to list the preliminary issues for hearing in this court on the earliest available date, and for adjournment of MJS’s application pending determination of those preliminary issues. Costs of both parties’ applications are reserved. Postscript – supplementary submissions At the end of the hearing on 1 October 2021, I granted leave for each party to file a supplementary outline of submissions (not exceeding three pages) confined to the issue of the court’s jurisdiction, together with draft orders. Each party did that. The respondent’s solicitor also attached to his supplementary outline of submissions nine pages of additional documents said to relate to the issue of whether the de facto relationship had ended or not. The respondent’s supplementary outline stated at [8]: “Leave is sought to file and rely upon a sequence of events …”. There is no suggestion that the respondent’s solicitor sought or obtained the consent of the applicant’s legal representatives before communicating with the court in this way about a matter of substance in connection with the proceeding. [26] [26] See Australian Solicitors Conduct Rules r 22.5. I have not had regard to the documents attached to the respondent’s supplementary outline. They should not have been sent. Neither the rules of court nor any order I made gave any authority for them to be forwarded without leave, and the court has not been asked to give or given leave for them to be filed. As has been said repeatedly by the High Court[27], the idea that parties may, without leave, file supplementary written submissions or present evidence after the conclusion of oral argument is misconceived. The time and place to present argument and evidence is the hearing. Once the hearing has concluded it is only in exceptional circumstances, if at all, that the court will later give leave to a party to supplement submissions. In this case, I gave leave to the parties to file supplementary written submissions confined to a specific issue within a short period of the hearing. No leave was given for further evidence. Legal practitioners must understand that they have no legal right to continue putting in evidence or submissions to the court after the hearing. [27] Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246, 258 (Mason J); Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 330. Notwithstanding those observations have been made in the context of the exercise of appellate jurisdiction, the essential principles are equally applicable to proceedings at first instance.

Ratio Decidendi

Legal Principle Established

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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 283
CASES:	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 318
COUNSEL:	C Ryall for the applicant J Blackburn (sol) for the respondent
SOLICITORS:	Bolt Burchill & Tranter for the applicant Gayler Cleland for the respondent