Mullis & Quimby

The appeal in the matter of Mullis & Quimby concerns a decision made by the primary judge regarding the division of property between the parties, who were in a de facto relationship and have two children together. The husband filed the initial application seeking parenting orders, which was later amended to include property orders. After a four-day hearing, the primary judge delivered a decision that the parties' pool of available property be divided 70 per cent to the wife and 30 per cent to the husband. Additionally, the primary judge made default orders for the sale of a property, with the wife required to pay a lump sum to the husband from the net proceeds of the sale. The husband appealed the decision, arguing that the primary judge erred in making the default property sale order and in not considering a percentage division of the net proceeds of sale.

The legal issues before the court were whether the primary judge erred in making the default property sale order, including the provision that the husband receive a lump sum of money from the net proceeds of sale, rather than a percentage of the net proceeds of sale, and whether such an order may have the effect of not representing the just and equitable division determined by the court. The husband argued that a percentage-based apportionment should have been applied instead of the lump sum payment, as it could reasonably be anticipated that there would be a substantial delay between the conclusion of evidence and the delivery of judgment.

The court found that there was an error of law on the part of the primary judge, as acknowledged by the wife in her submissions. The court applied the principles adumbrated in relevant authorities, including House v the King (1936) 55 CLR 499, to find that the primary judge's decision did not represent a just and equitable division of the parties' property. Consequently, the court re-exercised its jurisdiction and made orders in the terms proposed by the parties, which included a percentage division of the net proceeds of sale. The court also granted relevant costs certificates to each party.

In summary, the court found error on the part of the primary judge in the division of property between the parties and made orders in accordance with the parties' proposals, representing a just and equitable adjustment of the parties' property.