S v B - [2004] QSC 80

SUPREME COURT OF QUEENSLAND

CITATION:

S v B [2004] QSC 80

PARTIES:

S
(plaintiff)
v
B
(defendant)

FILE NO/S:

SC 6082 of 2000

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING
COURT:

Supreme Court, Brisbane

DELIVERED ON:

8 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

11-15 August 2003

JUDGE:

Philippides J

ORDERS:
1. The defendant pay to the plaintiff the amount of $255,431.
2. Within 14 days of the date of this Order, the plaintiff shall do all acts and execute all documents as are reasonably necessary to:
(a) cause the plaintiff to resign as a director of E;
(b) cause the shareholding held by the plaintiff in E to be transferred to the defendant.

CATCHWORDS:

DE FACTO RELATIONSHIPS – whether plaintiff and defendant living together as a couple on a genuine domestic basis – whether parties had lived in a de facto relationship for at least two years – whether global or asset-by-asset approach appropriate – just and equitable adjustment of property interests

Acts Interpretation Act 1954
Family Law Act 1975 (Cth)
Property Law Act 1974

Bonnici v Bonnici (1992) FLC 92-272
Del Gallo v Frederiksen [2000] 27 Fam LR 162
Jones v Grech [2001] 27 Fam LR 711
Mallet v Mallet (1984) 156 CLR 605
McMahon v McMahon (1995) FLC 92-606
McDonald v Stelzer [2000] 27 Fam LR 304
Norbis v Norbis (1986) 161 CLR 513

COUNSEL:

C Forrest for the plaintiff
A Collins for the defendant

SOLICITORS:

Attwood Marshall for the plaintiff
Gall Standfield & Smith for the defendant

PHILIPPIDES J:

The Plaintiff’s Claim

The plaintiff brings these proceedings against the defendant pursuant to Part 19 of the Property Law Act 1974 (“the Act”) seeking a property adjustment order pursuant to s 286 of the Act.

The plaintiff claims that she and the defendant lived together in a de facto relationship within the meaning of s 260 and s 261 of the Act from February 1993 to January 2000. It is alleged that in respect of the period from February 1993 to February 1996, the plaintiff lived at the defendant’s unit at B, and at the defendant’s house at C. From February 1996 to late January 2000, it is said that she lived at W., in a house built and financed by the defendant. It is alleged that the parties were de facto partners, who lived together as a couple on a genuine domestic basis in a relationship based on intimacy, trust and personal commitment to each other. It is alleged that the plaintiff made financial and non financial contributions to the acquisition, conservation or improvement of the property of the parties or of the defendant and to the financial resources of the parties for the purposes of s 291 of the Act. It is further alleged that the plaintiff made homemaking contributions and other contributions to the welfare of the defendant for the purposes of s 292 of the Act. The plaintiff also relies on sections of Division 4 subdivision 4 of Part 19 of the Act.

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 v B

Details

AGLC: S v B [2004] QSC 80
Case: [2004] QSC 80
Decision Date: 8 March 2004

CaseChat Overview and Summary

The case before the court involved a dispute between the plaintiff and the defendant concerning their former de facto relationship and the division of their property. The matter was heard in the Family Court of Australia. The primary issue the court had to determine was whether the parties had indeed lived together on a genuine domestic basis as a couple for a period of at least two years, as required by statute. Additionally, the court needed to decide on the appropriate approach for the division of their property interests, whether it should be a global or asset-by-asset approach, and to make a just and equitable adjustment of their property interests.

The court examined the evidence provided by both parties regarding the nature of their relationship and the duration for which they had lived together. It assessed the nature of their interactions, their financial arrangements, and other factors that could indicate the genuineness of their domestic relationship. In deciding on the property division approach, the court considered the statutory requirements and the circumstances of the case, including the contributions made by each party to the acquisition of their assets. The court also evaluated the fairness and equity of the division of their property, taking into account all relevant factors.

The court found that the plaintiff and the defendant had indeed lived together as a couple on a genuine domestic basis for the requisite period. It determined that a global approach was suitable for the division of their property interests, as it provided a fair and equitable outcome in the circumstances. The court ordered the defendant to pay the plaintiff a specific amount, and further directed that the plaintiff should resign as a director of a particular entity and transfer her shareholding in that entity to the defendant. This decision aimed to achieve a just and equitable adjustment of the parties' property interests in accordance with the Family Law Act.

Orders

Orders of the court

1. The defendant pay to the plaintiff the amount of $255,431.

2. Within 14 days of the date of this Order, the plaintiff shall do all acts and execute all documents as are reasonably necessary to:

(a) cause the plaintiff to resign as a director of E;

(b) cause the shareholding held by the plaintiff in E to be transferred to the defendant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	S v B [2004] QSC 80
PARTIES:	S (plaintiff) v B (defendant)
FILE NO/S:	SC 6082 of 2000
DIVISION:	Trial Division
PROCEEDING:	Civil Trial
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	8 March 2004
DELIVERED AT:	Brisbane
HEARING DATE:	11-15 August 2003
JUDGE:	Philippides J
ORDERS:	1. The defendant pay to the plaintiff the amount of $255,431. 2. Within 14 days of the date of this Order, the plaintiff shall do all acts and execute all documents as are reasonably necessary to: (a) cause the plaintiff to resign as a director of E; (b) cause the shareholding held by the plaintiff in E to be transferred to the defendant.
CATCHWORDS:	DE FACTO RELATIONSHIPS – whether plaintiff and defendant living together as a couple on a genuine domestic basis – whether parties had lived in a de facto relationship for at least two years – whether global or asset-by-asset approach appropriate – just and equitable adjustment of property interests Acts Interpretation Act 1954 Family Law Act 1975 (Cth) Property Law Act 1974 Bonnici v Bonnici (1992) FLC 92-272 Del Gallo v Frederiksen [2000] 27 Fam LR 162 Jones v Grech [2001] 27 Fam LR 711 Mallet v Mallet (1984) 156 CLR 605 McMahon v McMahon (1995) FLC 92-606 McDonald v Stelzer [2000] 27 Fam LR 304 Norbis v Norbis (1986) 161 CLR 513
COUNSEL:	C Forrest for the plaintiff A Collins for the defendant
SOLICITORS:	Attwood Marshall for the plaintiff Gall Standfield & Smith for the defendant