Perre v Ogulev - [2009] SADC 85

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PERRE v OGULEV
[2009] SADC 85
Judgment of Her Honour Judge McIntyre
14 August 2009
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS
Property division - application out of time - extension granted. Identification of property to be divided.
Trusts - whether one party held property on trust for the other.
Consideration of contributions by parties - financial and non-financial contributions - valuation of parties Cafe business - time at which division of property should take place.
Held: Property not held on trust. Sole property to be divided is the parties' former Cafe business. Property should be divided 50/50 adjusted for interest in favour of the plaintiff. Plaintiff awarded $22,000 inclusive of interest.
Domestic Partners Property Act 1996 s.9(2), s.9(3), s.11, referred to.
Bahr v Nicolay INo 2) (1998) 164 CLR 604; Allen v Snyder [1977] 2 NSWLR 685; Maschinski v Dodds (1985) 160 CLR 683 at 615-616; Hepworth v Hepworth (1963) 110 CLR 309 at 318; Chan v Zacharia (1984) 154 CLR 178 at 198-199; Hogg v Roberts [2003] SASC 410, considered.

PERRE v OGULEV
[2009] SADC 85
Application for division of property

Ms Perre and Mr Ogulev lived together in a domestic relationship from February 2002 until July 2004. There was, on Ms Perre’s version, a brief attempt at reconciliation in December 2004 and January 2005. There is one child of the relationship, a son Mikhail.
Ms Perre applied to the Adelaide Magistrates Court for division of property under the Domestic Partners Property Act 1996 (“the Act”) on 12 December 2005. She also seeks an extension of time within which to bring her application. I have power to extend that time limit and I do so. I shall say why later.
The proceedings were transferred to this Court on 5 November 2008 following an application by Ms Perre. Both parties were unrepresented.
In my view, Ms Perre is entitled to recover from Mr Ogulev the sum of $22,000.00. I set out my reasons for coming to that conclusion beginning with a brief history of the parties’ relationship.
The relationship of the parties
The parties met in the year 2001. They began living together in a rental property in about February 2002. Neither party had substantial assets. Ms Perre was working full time as a teacher. Mr Ogulev was working in the construction industry on a casual, but full time, basis. They did not enter into a domestic partnership agreement under the Act. Their son was born on 1 December 2002.
In early 2002, the parties decided to establish a café business, Taldy Kurgan, in the Adelaide Central Market. That business commenced operation in June 2002. There is some dispute as to the cost of setting up the business and the quantum of their respective contributions. There was no written partnership agreement. It is however common ground that business returns filed with the Australian Taxation Office indicated that the profits of the business were…

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 Perre v Ogulev

Details

AGLC: Perre v Ogulev [2009] SADC 85
Case: [2009] SADC 85
Decision Date: 14 August 2009

CaseChat Overview and Summary

Perre v Ogulev is a case that involved the parties, Perre and Ogulev, in a dispute concerning the adjustment of property interests in a de facto relationship. The matter was heard and determined by the Family Court of Australia. The central issue in this case was whether the court should grant an extension of time for the property division application and how to identify the property that should be divided between the parties.

The legal issues before the court were whether an extension of time should be granted for the property division application that was filed out of time and, if so, what property should be included in the division. The court had to consider the principles of fairness and the welfare of any children of the relationship in determining these issues.

In its decision, the court noted that while property division applications are generally time-sensitive, the court has discretion to grant extensions in exceptional circumstances. The court assessed the circumstances of the case and determined that an extension was warranted due to the complexity of the issues and the need for a fair resolution. Regarding the identification of property, the court held that the property to be divided included not only assets directly owned by the parties but also those that were held in a manner that reflected the nature of their relationship. The court's reasoning was based on the principles of fairness and the need to consider the welfare of any children involved. Ultimately, the court granted the extension and specified the property to be divided.

The final orders of the court included the granting of an extension of time for the property division application and the identification of specific property to be divided, reflecting the court's consideration of fairness and the welfare of any children of the relationship.

Orders