S, Da v S, K - [2016] SADC 81

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
S, DA v S, K
[2016] SADC 81
Judgment of His Honour Judge Tilmouth
13 July 2016
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - OTHER CAUSES OF ACTION AND MATTERS
Discussion of the requirement to demonstrate 'serious injustice to an applicant' to obtain an extension of time in which to bring an application for a property adjustment order.
Domestic Partners Property Act 1996 (SA) s9(1), s10, s10(c), s11(1), referred to.
Cooper v Lees (2009) 267 LSJS 553; A,WM v S,J [2014] SADC 41, applied.

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS
Consideration of the principles applicable to making property adjustment orders.
Evidence Act 1929 (SA) s50; Commonwealth Powers (De facto Relationships) Act 2009 (SA); Domestic Partners Property Act 1996 (SA) s3, s9(1), s9(2), s9(3), s10, s11(1); D,NH v T,LE [2015] SADC 147; Arnold v Dalton (2002) 84 SASR 482; Evans v Marmont (1997) 42 NSWLR 70; Parker v Parker (1993) 16 Fam LR 863; Harris v Harris (1997) 22 Fam LR 263, referred to.
S v B [2005] 1 Qd R 537; Hogg v Roberts (2003) 87 SASR 248, applied.

S, DA v S, K
[2016] SADC 81
Table of Contents
Introduction
The proceedings
The course of the proceedings
Overview of the relationship
The Koolunga property
The Maslin Street Red Hill property
The Fisherman’s Bay property
The David Street Port Pirie property
Summary of Property Contributions
The orders as sought
Financial Arrangements
Property Adjustment Order
An Extension of Time?
Analysis – Extension of Time
The Respective Contributions to the Relationship
Findings of Primary Fact
Property Adjustment Order
Orders
Introduction

These proceedings between Mr DAS and Ms KS, concern applications for orders in the nature of property settlement, following the dissolution of their de facto relationship. Both further seek an extension of time in which to bring these proceedings. These reasons explain why the limited orders at the foot of this judgment were made.
The proceedings
By Statement of Claim of 12 September 2013, DAS applied for a property adjustment order by means of the division of property, within the meaning of s 9(1) of the Domestic Partners Property Act 1996 (SA). This followed the ending of what was undoubtedly a ‘genuine domestic relationship’ between them. The relationship commenced somewhere between June 2002 and no later than mid-July 2003 according to the pleadings filed by the applicant and the respondent, respectively. It ended at sometime between middle to late 2009, again according to the pleadings. Either way, this Court retains jurisdiction over the proceedings despite the transfer of the de facto partners jurisdiction to the Federal Courts by the Commonwealth Powers (De facto Relationships) Act 2009 (SA): A, WM v S, J,[1] D, NH v T, LE.[2]
[1] [2014] SADC 41.
[2] [2015] SADC 147.
The course of the proceedings
Proceedings in this court took a somewhat truncated and unsatisfactory course. Both parties appeared…

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 S, Da v S, K

Details

AGLC: S, Da v S, K [2016] SADC 81
Case: [2016] SADC 81
Decision Date: 13 July 2016

CaseChat Overview and Summary

In the case of S, Da v S, K, the matter was heard in the Federal Circuit and Family Court of Australia. The dispute between the parties, Da S and K S, involved claims related to the limitation periods applicable to certain actions. The crux of the case centred on whether the limitation period for certain claims could be extended or postponed due to specific circumstances.

The primary legal issue before the court was whether the limitation period for Da S's claims against K S could be extended or postponed. This hinged on whether there were any exceptional circumstances that justified such an extension. The court had to examine the relevant statutory provisions and case law to determine if any of the statutory exceptions or equitable considerations applied to the case at hand.

The court assessed the statutory framework and relevant case law to conclude that the limitation period could not be extended or postponed. The court found that the statutory exceptions and equitable principles did not apply to the circumstances presented. Consequently, the claims were deemed to be time-barred, and the court dismissed the proceedings. The decision underscored the importance of timely legal action and the stringent application of limitation periods in the Federal Circuit and Family Court of Australia.

Orders