P v J
[2014] WASCA 95
•5 MAY 2014
P -v- J [2014] WASCA 95
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 95 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:128/2012 | 10 APRIL 2014 | |
| Coram: | NEWNES JA MURPHY JA BEECH J | 5/05/14 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | P J |
Catchwords: | Family law De facto relationship Application for property settlement Application for leave to proceed out of time pursuant to s 205ZB(2) of Family Court Act 1997 (WA) Whether primary judge's findings of hardship open on the evidence Adequacy of findings Adequacy of reasons Whether appellable error in relation to discretion Matters going to weight only |
Legislation: | Family Court Act 1997 (WA), s 205ZB |
Case References: | Dodds v Kennedy [2011] WASCA 32 Giller v Procopets [2008] 24 VR 1; (2008) VSCA 236 Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 House v The King [1936] HCA 40; (1936) 55 CLR 499 Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711 Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 McDonald v Stelzer [2000] NSWCA 302; (2000) 27 Fam LR 304 Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 Neocleous and Neocleous (1993) 16 Fam LR 557 Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 Selmore v Bull [2005] NSWCA 365; (2005) 34 Fam LR 488 Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 Whitford and Whitford (1979) 4 Fam LR 754 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : P -v- J [2014] WASCA 95 CORAM : NEWNES JA
- MURPHY JA
BEECH J
- Appellant
AND
J
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram : CROOKS J
Citation : J and P [2012] FCWA 100
File No : PTW 1385 of 2009
Catchwords:
Family law - De facto relationship - Application for property settlement - Application for leave to proceed out of time pursuant to s 205ZB(2) of Family Court Act 1997 (WA) - Whether primary judge's findings of hardship open on the evidence - Adequacy of findings - Adequacy of reasons - Whether appellable error in relation to discretion - Matters going to weight only
Legislation:
Family Court Act 1997 (WA), s 205ZB
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr H O Moser
Respondent : Mr J B Hedges
Solicitors:
Appellant : GG Legal
Respondent : Bannerman Solicitors
Case(s) referred to in judgment(s):
Dodds v Kennedy [2011] WASCA 32
Giller v Procopets [2008] 24 VR 1; (2008) VSCA 236
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
McDonald v Stelzer [2000] NSWCA 302; (2000) 27 Fam LR 304
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
Neocleous and Neocleous (1993) 16 Fam LR 557
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Selmore v Bull [2005] NSWCA 365; (2005) 34 Fam LR 488
Wentworth v Rogers (No 3) (1986) 6 NSWLR 642
Whitford and Whitford (1979) 4 Fam LR 754
1 REASONS OF THE COURT: In broad terms, this matter concerns an appeal against an interlocutory decision of the primary judge in the Family Court of Western Australia to grant the first respondent leave to commence proceedings for property settlement out of time in respect of her de facto relationship with the appellant.
2 On 24 March 2009, the first respondent (J) commenced proceedings under the Family Court Act 1997 (WA) (the Act) against the appellant (P) alleging that she and the appellant had been in a de facto relationship for at least two years, and sought orders for a property settlement. A number of other entities (referred to later in these reasons as the '3 Group company', 'D Corporate' and 'F Investments'), in which J had held various positions during the parties' relationship, were also parties to the proceedings below and are named as respondents to this appeal. However, in these reasons, where we refer to 'the parties', we are referring to J and P, unless the context indicates otherwise.
3 In the court below, P had disputed that the parties were in a de facto relationship for at least two years and submitted that, accordingly, by virtue of s 205Z(1)(a) of the Act, the court did not have jurisdiction to hear the matter. P had also submitted that, in any event, J had not commenced proceedings within the time specified in s 205ZB(1) of the Act, and that the court should refuse any application for leave to institute proceedings outside of that time.
4 Section 205ZB of the Act provides:
205ZB. Applications, and notifications to spouses
(1) A de facto partner whose de facto relationship has ended may apply for an order under this Division in relation to the relationship only if the application is made within 2 years (the application period) after the relationship ended.
(2) However, the court may grant a de facto partner leave to apply after the application period if satisfied that hardship would be caused to a de facto partner if leave were not granted.
(3) If a de facto partner who is a party to an application under this Division has a spouse, that person is to give that spouse notification of the application in accordance with the rules.
5 On 1 December 2010, the primary judge, Crooks J, ordered that questions relevant to the court's jurisdiction be determined as a preliminary issue, prior to any hearing of J's substantive property claims. The preliminary issue was heard on 17, 18, 21 and 22 March 2011, and final submissions were made on 8 June 2011.
6 At the start of the trial of the preliminary issue, J's counsel gave notice that if the judge were to find that there had been a de facto relationship, but that J's application had not been filed within two years of its cessation, J would apply for an order under s 205ZB(2) of the Act that she be granted leave to apply for property orders outside of the application period.
7 On 3 July 2012, Crooks J made orders as follows:
1. Leave is hereby granted to [J] to institute proceedings out of time.
2. Upon the Court finding that a de facto relationship of more than two years existed between [J] and [P], the matter be listed before the Honourable Justice Crisford for directions as to the further conduct of the matter.
8 On 29 October 2012, Crooks J delivered his reasons for making those orders. His Honour found, in effect, that the parties were in a de facto relationship which ended in November 2006, and that although J's application was filed approximately four months outside of the application period, it was appropriate to exercise the court's power under s 205ZB(2) to grant leave to institute proceedings.
9 The appellant, P, does not challenge Crooks J's finding that the parties had been in a de facto relationship for over two years and that the court had jurisdiction to hear the substantive matter. Rather, he asserts that the primary court erred in exercising its power to grant J leave to institute proceedings four months outside of the application period.
10 The appeal was not instituted in time and the appellant requires leave to extend the time to bring the appeal. The appellant also applied for leave to appeal.
General background
11 The judge made the following unchallenged findings of fact with respect to the general background to the relationship between the parties. (All references referred to below are references to paragraph numbers in the primary judge's reasons.)
12 At the time of the preliminary hearing, P and J were both 48 years old.
13 The parties met in about 1993 or 1994, and began an intimate relationship around 1995. Each had a number of children from former marriages. P's children lived with him and spent little time, if any, with their natural mother.
14 After the parties began their relationship, they spent significant periods staying at each other's home. The parties and their children also lived together in the one home for a period in 2000 or 2001, however it was unclear for how long this living arrangement subsisted. The parties were often in conflict, and the relationship was at times physically violent, particularly in its early years.
15 P was a member of a motorcycle club and in order to minimise his exposure to assets seizure legislation, P had instructed his accountant to establish a number of entities, both companies and trusts, to hold assets [135].
16 In 2001 P established a company (which we will call the '3 Group company') and became its director, secretary and sole shareholder [19], [136]. The 3 Group company acted as trustee for a family trust (the Family Trust), which was set up by P in September 2001. P was the appointor, guardian and a general beneficiary of the trust and P's children were the specified beneficiaries. J was the settlor of that trust [19], [136].
17 In January 2002, after further conflict in the relationship, J moved to Tasmania where she lived until September 2002.
18 By November 2002, the parties resumed their relationship and began living together with their children in a property in Gosnells that P was renting.
19 In about January 2004, the parties moved from Gosnells to a property in Martin, which they had chosen together as their future home. J lived in the Martin property from shortly after it was purchased, until 29 March 2007, apart from a limited period in late 2004, following a bad argument. P was living at the Martin property when J left in March 2007, although by that time the two were not sharing a bedroom [254], [257], [260].
20 The judge found that P and J were in a de facto relationship for over two years which ended in November 2006 [262] - [263]. His Honour referred to the period of 'some four years' after November 2002 as being the 'de facto period' [285]. Counsel for J had submitted to the primary judge that the parties had been in a de facto relationship for six months from January 2001 [34]. The judge found it unnecessary to determine whether that was so for the purposes of the preliminary issues, since a relationship of at least two years is sufficient to attract jurisdiction [263].
Property investments and business interests during the de facto relationship
21 The judge also made the following unchallenged findings of fact.
22 J had no assets of significant net value in November 2002 [130]. His Honour said that whilst P was not a man of substantial means when the parties began living together in November 2002, he was nevertheless clearly in a stronger net asset position than J. His Honour referred in that regard to a number of assets that P had disclosed in his affidavit, but said that he was unable to determine with any accuracy the extent to which P was better off [131] - [133].
23 The parties did not purchase any property in joint names. From the time the parties began living together in November 2002, P avoided buying any real estate in his name due to his affiliation with the motorcycle club so as to minimise his exposure to asset seizure legislation [134].
24 P significantly involved J in the corporate structures of the entities he arranged to hold the various assets he controlled [158].
25 Many of the assets acquired through P's companies and trusts were acquired while the parties lived together [135]. There was no dispute that P controlled these entities [148]. They were his 'alter egos' [278].
26 The Martin property was acquired in January 2004 in the name of the 3 Group company for approximately $685,000, of which $500,000 was borrowed from the bank, and the balance came from P [19], [140]. J did not contribute to the purchase price or to any of the mortgage repayments or outgoings on the Martin property. She was, however, consulted in relation to the purchase and the parties jointly inspected the Martin property, which was intended to be their home and the home for their children [141]. J lived there (apart from a limited absence in late 2004) until March 2007 [21].
27 During the financial years ending in 2005 - 2007, distributions of income from the Family Trust totalling $165,136 were recorded as being made to J. They were not paid, and the amounts the subject of the distributions were treated in the books of the trust as loans by her to the trust. This arrangement benefited P financially as it minimised tax in the Family Trust [151] - [153].
28 The Family Trust owned a business (which we will refer to as 'the ABB business') which was operated by P. J helped out in the running of the ABB business. Although she worked less than she had asserted in her affidavit, the judge accepted that her contribution to the operation of the business was nonetheless 'significant' [137] - [139].
29 Other entities were established during the parties' relationship [20].
30 Another company (which we will refer to as 'D Corporate') was set up in June 2004 by P to act as a property holding company. J was the original director, secretary and sole shareholder of D Corporate. In August 2006, a discretionary trust was established in respect of which D Corporate acted as trustee (the Discretionary Trust). J was originally named guardian and appointor of the Discretionary Trust, and was named as a beneficiary, along with her children who were named as specified beneficiaries [142] - [143].
31 D Corporate acquired several properties:
• one in Yangebup in about July 2005 for $170,000;
• another in Westdale in October 2005 for $327,500; and
• a property in Karragullen in October 2006 for $1,160,000 [144].
32 Another company (which we will refer to as 'F Investments') was created in June 2004 by P and his friend, to acquire properties for development [145]. J was appointed director of F Investments, and she held one half of the issued shares in the company [146]. F Investments acquired a property in Midland in July 2005 for $165,000. It also acquired three properties in Gosnells in July 2004, October 2004 and January 2006, for $200,000 each [147].
33 P controlled the entities referred to above, including J's 50% interest in F Investments, and J would basically do as P requested. When J was appointed to the various positions, P had J sign undated resignations and share transfers at the same time [148].
34 In her capacity as director of D Corporate and F Investments, J would execute all necessary documents in relation to the affairs of the entities. She also gave a director's guarantee for loans when required, including a director's guarantee for payment of the loan of $185,000 in connection with the purchase of the Yangebup property [149], [158].
35 In 2005 and 2006, P gave J two amounts totalling $30,000. One sum ($5,000) was for the purchase of a mobile phone business in Mandurah. The business was not viable and ceased operation. The other sum ($25,000) was to enable her to purchase a store in Fremantle Markets selling 'Gothic paraphernalia' [154] - [155].
36 J resigned from her positions in the various entities in early 2007 at P's request after allegedly being threatened with violence [150].
37 In deciding the question of hardship, his Honour also made the following observations.
38 There was no formal valuation evidence for the Martin property at the trial, however there was unchallenged evidence of an appraisal of the property indicating a value of $1,100,000 [279].
39 A market appraisal obtained by D Corporate indicated that the Yangebup property was worth about $350,000 by May 2010 [274].
40 The judge said that although he was unable to determine the net equity position of the 3 Group company, D Corporate and F Investments, there was no question that the value of the assets acquired in the names of those entities during the period of the parties' de facto relationship was substantial, and were controlled by P [280].
J's substantive property claim
41 In J's amended application dated 7 October 2009, she sought an order that D Corporate transfer to her the Yangebup property. She also sought 'such further orders with respect to the division of property' between the parties as the court deemed appropriate, 'including but not limited to the further transfer of real property'. J requested the opportunity to particularise further her claim upon compliance by the other parties with respect to the provision of financial disclosure.
42 At the preliminary hearing, J's counsel said that, if necessary, orders would also be sought setting aside various transactions which removed J and P from the positions they held in the various entities before the restructuring that took place following the parties' separation. J's counsel also said that J would be seeking repayment of her outstanding loan account entitlements which were said to be about $400,000 but on the evidence appeared to be $165,136. The judge said that '[w]hichever amount is correct the sums involved are significant, particularly for a party in [J's] financial position' [273].
The judge's findings relevant to the grant of leave
The judge's statement of the relevant principles
43 The judge's statement of the principles applicable to an application under s 205ZB(2) were not challenged in this appeal. Those principles included the following.
44 With reference (by analogy) to Whitford and Whitford (1979) 4 Fam LR 754, his Honour said that two broad questions arose for determination under s 205ZB(2). The first is whether the court is satisfied that hardship would be caused to the applicant if leave were not granted. If the court is not so satisfied, that is the end of the matter. However, if the court is so satisfied, then it must also consider whether to exercise its discretion to grant or refuse leave to institute the proceedings [268].
45 His Honour observed at [270] that in Neocleous and Neocleous (1993) 16 Fam LR 557, the Full Court said:
Hardship is caused by the inability of a person to pursue a claim which in the circumstances of the case appears on prima facie evidence to be substantive and not merely trifling (561).
46 His Honour said that if hardship were established, factors relevant to the exercise of discretion would include the reasons for the delay and the extent of any prejudice to the respondent [271].
47 His Honour said, in effect, that with respect to the applicant establishing a prima facie case, the court proceeded on the basis that the applicant's evidence should be accepted unless it is inherently unbelievable or contradictory [272].
48 (The findings referred to below include matters which his Honour said should be accepted for the purposes of the application on the basis that they were not unbelievable or contradictory.)
The judge's findings on hardship
49 Each of the parties filed statements of financial circumstances before the trial of the preliminary issue.
50 In J's statement filed on 3 November 2010, she disclosed:
• gross average weekly earnings of $840 per week;
• assets valued at approximately $1,800;
• a one-third interest in her late mother's estate of $98,000;
• superannuation valued at approximately $690; and
• liabilities of approximately $38,600.
J's statement did not include any liability for the payment of legal fees which the judge said he suspected was likely to be substantial [275].
51 In P's statement filed on 24 April 2009, he disclosed:
• gross weekly earnings of approximately $700 per week;
• assets valued at approximately $455,000, including loan account entitlements of $148,508 from the Family Trust and $262,786 from the Discretionary Trust; and
• superannuation entitlements of $51,000 [276] - [277].
52 At the trial of the preliminary issue, P's counsel said that he was currently unemployed. The judge said that there was no evidence to suggest that P had made any effort to find paid work, and that the evidence disclosed that during the 'de facto period' P was able to run the ABB business and to support a large household, and had found employment after this [282].
53 The judge also said that it was important to note that apart from the loan entitlements, P's financial statements made no reference to him having any interest in any of the companies or trusts to which reference has been made, despite them 'clearly' being P's 'alter ego' before the parties separated [278].
54 P's counsel said that P had made a gift to his sons of his business interests, including the ABB business, which had generated the income when the parties had lived together from November 2002 [276]. J disputed P's assertion that it had been understood that P's children were to take over control of the entities when they reached 18 years of age [278]. As noted earlier, the judge found that, although he was unable to determine the net equity of the 3 Group company, D Corporate and F Investments, the value of the assets acquired in their names was substantial and controlled by P.
55 The judge recorded the submissions of P's counsel in opposition to the grant of leave at [281].
56 The judge found that J was 'hardly in a strong financial position', and that she was not in a 'better position financially' than P [282].
57 The judge accepted that J brought no substantial assets into the relationship [284]. His Honour found, however, that:
(a) J was the main homemaker after the parties began living together in November 2002 and that this significantly benefited P and his children;
(b) that 'it has long been established that contributions as a homemaker are not to be assessed in a "token way" but in terms of their true worth towards the building up of assets'; and
(c) J had also 'significantly assisted' in the care of P's children during the four year 'de facto period', and that this was a matter to be taken into account in J's property claim [285] - [286].
58 There is no challenge in this appeal to the above findings.
59 The judge said at [257] that J also made other contributions in the 'de facto period' which he said were also likely to be taken into account, including:
(a) helping P with the running of the ABB business [139];
(b) acting as director of D Corporate and F Investments, and executing director's guarantees as required to enable those entities to acquire assets [149], [158]; and
(c) agreeing to receive distributions from the Family Trust over a number of years, which were not paid to her, to assist in minimising the tax liabilities on trust profits [151] - [153].
60 Again, the above findings are not challenged in this appeal.
61 In relation to contributions made by J before the parties lived in a de facto relationship, the judge accepted that there was evidence not inherently unbelievable or contradictory to the effect that before November 2002 she had:
(a) assisted P in the care of his children and in a homemaking role when the parties were staying over each at other's homes; and
(b) worked with P to refurbish and improve a home owned by P in Upper Swan, described as 'the Citrus St property', prior to its sale by P in December 2001 [129(a)], [131], [288]. This included her helping to polish floor boards, to paint the internal house walls, and to seal a parquetry floor [288] - [289].
62 His Honour said that once the court has jurisdiction to hear J's property claim, it is entitled to consider all of the parties' contributions, including those which may have been made before the parties lived in a de facto relationship [290].
63 The judge accepted that J received financial benefits during her relationship with P and said that they would be taken into account at any substantive trial when all parties' respective contributions were considered. His Honour concluded:
I accept the submission of [J's] counsel that [J] has well established she has a reasonable claim to be heard, and would suffer hardship if denied the right to litigate the claim.
Whilst I am unable to say what the final outcome of [J's] application for property is likely to be, she certainly has a prima facie claim worth pursuing, which is not 'trifling'.
In reaching my decision, I have also taken into account that [J] has significant loan entitlements on the company accounts, and would likely be faced with having to commence proceedings in another court, if she sought to recover those funds [293] - [295].
The judge's exercise of discretion
64 In relation to the exercise of the discretion to grant leave, the judge addressed the delay in bringing the claim and whether P was prejudiced by such delay.
65 With respect to delay his Honour held, in effect, that:
(a) J's application was only four months outside of the application period; and
(b) such a period was not 'significant', particularly in circumstances where:
(i) the parties had continued to share the same home for that four months period; and
(ii) his Honour accepted J's evidence that she did not regard the relationship as being completely over until she left the Martin property on 29 March 2007 [297].
The legal principles
Appellate intervention
67 The principles relevant to appellate intervention against the exercise of a discretion are well known and were not in dispute: House v The King [1936] HCA 40; (1936) 55 CLR 499. An appellate court will not interfere with an exercise of judicial discretion on the basis of a failure to give adequate weight to relevant considerations unless it can be shown that the failure really amounts to a failure to exercise the discretion actually entrusted to the court: Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 534 - 535; Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614; Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519; Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 [36]; Dodds v Kennedy [2011] WASCA 32 [42].
68 Wherever a discretion is to be exercised, minds may differ on the result: Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 539 - 540; Wentworth v Rogers (No 3) (1986) 6 NSWLR 642, 644.
The principles applicable to the grant of leave under s 205ZB(2)
69 As noted earlier, the parties did not dispute the judge's statement of the relevant principles. For present purposes that may be accepted. However, our preliminary view (in the sense that it is unnecessary to reach a concluded view on this for the disposition of this appeal) is that his Honour's statement of the principles is at least incomplete in the following respect.
70 Section 205ZB does not lay down a general time limit and then give the court a discretion to extend that time limit. Rather, s 205ZB(2) confers a power to grant leave to apply after the application period upon the court being satisfied of a certain matter (hardship), and is not merely expressed as a power to extend a primary time limit. In this regard, the observations of Mason P (Tobias JA and Brownie AJA agreeing) in Selmore v Bull [2005] NSWCA 365; (2005) 34 Fam LR 488 are apposite. With reference to a provision of similar (but not identical) content and structure, in cognate legislation (s 18 of the Property (Relationships) Act 1984 (NSW), Mason P said:
Section 18 does not lay down a general time limit, giving discretion to the court to extend it. Rather, it makes two different provisions. That found in subs (2) is expressed in terms of power to grant leave to apply, not as a power to extend the primary time limit. As Bryson J pointed out in Beavan v Fallshaw (1992) 15 Fam LR 686 at 687:
'The section appears … to treat an application for leave to apply as a normal event, calling for the court to consider two stages, a finding relating to hardship and the exercise of a discretion, without any special jealousy for the observance of the time limit or particular concern for it … In considering whether a court should exercise a discretion conferred by statute to make an order in favour of some course, it is usual to consider whether there is a sound and positive ground or a good reason for making the order. Ultimately however it is not … legally necessary to define exactly the ground on which a discretion is exercised favourably to an applicant [12]'.
71 The first ground of appeal alleged:
The judge erred in law by finding at [293] of the reasons that J had a reasonable claim to be heard and that she would suffer hardship if leave were not granted.
The judge ought to have found that that J had not established hardship or in the alternative, that he did not have sufficient evidence before him to determine the extent of J's claim and whether J would suffer hardship if leave were not granted.
Consequently, the judge ought not to have exercised his discretion to grant J an extension of time.
72 The second ground of appeal alleged:
Having found at [263] of the reasons that the de facto relationship ended in November 2006 the judge erred in law in finding that the delay was not significant by taking into account a factor contrary to the finding at [263] of the reasons.
The judge ought to have found that J had not explained the delay and that relying on her own belief as to the continued existence of the de facto relationship contrary to the finding as to the end of the de facto relationship was not sufficient to explain the delay.
Consequently, the judge ought not to have exercised his discretion to grant J an extension of time.
73 The third ground of appeal alleged:
The judge erred in law in concluding in [298] of the reasons that the appellant would not suffer prejudice by reason of the judge not making any findings of fact to support the conclusion and by failing to provide reasons for the conclusion.
The judge ought to have provided reasons for concluding that no prejudice arose and ought also to have addressed the question of any prejudice caused to the second, third and fourth respondents.
Consequently, the judge ought not to have exercised his discretion to grant the first respondent an extension of time.
74 At the hearing of the appeal, ground 3 was confined to the question of prejudice to P, and was abandoned insofar as it raised questions concerning prejudice to the second, third and fourth respondents.
Ground 1 - disposition
75 The appellant, P, sought to support ground 1 by reference to three arguments. First, it was said that the judge misdirected himself as to whether J had a reasonable claim and as to the question of hardship by relying on the gross, as opposed to the net, value of the assets being held by the relevant entities. Secondly, the judge erred by taking into account loan account entitlements without specifying whether or not they were being taken into account as an asset available to J or not. Thirdly, the judge erred by taking into account contributions that were said to have been made before the 'de facto period'.
76 It is appropriate to commence a consideration of ground 1 with a summary of the effect of his Honour's unchallenged findings of primary fact (by which term we include matters his Honour accepted, for the purposes of the application, as not being inherently unreliable or contradictory):
(a) J was a 48-year-old woman of limited assets, putting aside for a moment her entitlement to recover amounts characterised as loans made to the Family Trust;
(b) P was in a better position financially than J and although he was currently unemployed, he had the capacity for gainful employment [282];
(c) P had significantly involved J in the entities which he had created for the purpose of holding various assets, including the 3 Group company, D Corporate and F Investments, which entities were effectively his 'alter ego' [135], [148], [158], [278];
(d) many of the assets acquired by these entities were acquired whilst the parties lived together [135];
(e) J had executed all necessary documents in relation to the affairs of the relevant entities, and executed guarantees in respect of borrowings undertaken by the entities during the de facto period as required by P [149], [158];
(f) 3 Group company acquired the Martin property in the de facto period as the parties' family home [19], [140]. There was some evidence that it had a gross value of $1.1 million [270];
(g) D Corporate acquired, during the de facto period, the Yangebup property and there was evidence to the effect that it had a gross value of $350,000 by 2010 [199], [274]. D Corporate also acquired other properties in the de facto period, including at Westdale and Karragullen, which had been purchased for a total of $1,487,500 in 2005 and 2006 respectively [144]; and
(h) F Investments had purchased, during the de facto period, properties for a total sum of $765,000 [147].
77 In other words, his Honour found that during the de facto period, entities controlled by P acquired substantial assets having, on one view of the evidence, a gross value of $3,702,500. There was also evidence, noted by his Honour, that external borrowings totalling approximately $685,000 had been used to finance the purchase of certain assets - $500,000 in the case of the Martin property, and $185,000 in the case of the Yangebup property [77], [140], [158].
78 In light of these findings of fact, and the other unchallenged findings as to J's contributions as a homemaker and in the care given to P's children, and her contributions with respect to the running of the ABB business and the entities controlled by P, it was open to the judge to find hardship within the meaning of s 205ZB(2) of the Act.
79 As to P's first argument, his Honour noted the external borrowings with respect to the acquisition of the Martin and Yangebup properties. P did not point to any particular evidence of liabilities incurred in the acquisition of the assets which his Honour failed to take into account. Nor was it suggested that there was evidence before his Honour to indicate that the entities to which he referred had no, or only marginal, net worth. P's submission was that it was not open to the judge to come to a conclusion on hardship without having evidence to enable a firm conclusion to be reached on the extent of the equity in the relevant assets. We do not accept that submission. Although the judge was not able, on the evidence before him, to make a positive determination of the current net asset position of the entities, it was open to the judge to conclude, on the material before him, that P had a prima facie claim worth pursuing which was not 'trifling'. No doubt more up to date evidence would be adduced at the trial of the substantive issues. In the end, P's submission reduced, in substance, to the proposition that his Honour attributed too much weight to the evidence before him, having regard to the absence of more up to date evidence concerning the values of the assets in question and the level of any associated borrowings. That argument does not disclose an error of law.
80 As to P's second argument, it is correct to say that the judge did not reach a finding that the unpaid distributions by the Family Trust to J were assets of J in the sense of enforceable loans. In the absence of an admission by the trustee (the 3 Group company), or perhaps P, that they were, it was open to his Honour to note, as he did, that if J sought to recover those loans she would be forced to litigate in a civil court [295]. A civil court, having regard to the judge's findings referred to above, would not have been an appropriate forum in these circumstances as the alleged loans were created in the context of the de facto relationship and would fall to be considered against that broader context and the respective contributions of the parties to their shared life in accordance with the statutory scheme.
81 As to the third argument, it emerged that two points were sought to be made, although the first does not appear in the grounds of appeal. The first point was that the judge, in effect, misconstrued s 205ZG of the Act in that on its proper construction, the court was not entitled to consider any contributions by the parties before the parties lived in a de facto relationship. The submission was made without reference to the text of s 205ZG and without any reference to authority in support of it in this State. Insofar as there is authority to the contrary in other jurisdictions, counsel said, again without reference to the relevant text of the legislation, that there were material differences in the legislation in other jurisdictions which meant that those authorities were of no assistance in the proper construction of s 205ZG. Authorities on this topic in other jurisdictions include McDonald v Stelzer [2000] NSWCA 302; (2000) 27 Fam LR 304 [39], Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711 [24] - [25], [81], and Giller v Procopets [2008] 24 VR 1; (2008) VSCA 236 [1], [39], [267] - [271].
82 P's second point was that the judge erred 'in including any pre-de facto relationship [contributions] in his assessment by virtue of them being minor and not sufficiently connected to financial and non-financial contributions' (appellant's submissions par 41).
83 As to P's second point, counsel for P accepted that it went to weight only. In that regard, no error of law is disclosed.
84 As to the first point, counsel for J contended, by brief reference to s 205ZG(4)(a) and s 205ZG(4)(c), that contributions prior to the commencement of the de facto period are to be taken into account. It is inappropriate for this court, having regard to the way in which the issue arose and the limited and unsatisfactory nature of the debate on the point, to reach any concluded view. It is sufficient to say that even if the judge was in error in taking the pre-de facto contribution into account, it could not and would not affect the correctness of the judge's ultimate conclusion, on the unchallenged findings of primary fact, that this was an appropriate case for the grant of leave.
85 Ground 1 should be dismissed.
Ground 2 - disposition
86 The appellant submitted that it was not open to the judge to take into account J's subjective view as to when she believed the relationship ended, as her subjective view was allegedly inconsistent with his finding that, objectively, the de facto relationship had ended some months earlier.
87 There is no merit in this ground. The two findings are plainly not inconsistent.
88 Whilst the judge found that, objectively, the de facto relationship ended in November 2006, he nevertheless accepted that J did not regard the relationship as being completely over whilst she continued to reside at the Martin property with P, and until she left the Martin property on 29 March 2007. It was open to his Honour to take into account that the four month delay was confined to a period in which she genuinely believed that the de facto relationship continued to subsist, and that accordingly she did not consciously 'sit on' her rights.
89 Ground 2 should be dismissed.
Ground 3 - disposition
90 The judge said that he was satisfied that the appellant would not be prejudiced by the delay. The appellant seeks to challenge this finding and say that the judge ought to have provided reasons for concluding that no prejudice arose.
91 This ground has no merit. It was open to the judge to infer, from the findings of primary fact, that there was no prejudice to P arising from the four month delay. It was unnecessary for the judge to repeat those findings in that part of his reasons dealing with prejudice.
92 Moreover, the appellant does not make any submissions in this appeal, or point to any evidence before the primary judge, of any particular prejudice that P might suffer or have suffered from the grant of leave.
93 Ground 3 should be dismissed.
Conclusion
94 The appeal has no merit. The appellant's application for an extension of time should be dismissed. The appellant's application for leave to appeal, to the extent that leave is necessary, should also be dismissed. The appeal should be dismissed.
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