S v. K - [2007] QDC 164

DISTRICT COURT OF QUEENSLAND

CITATION:

S v K [2007] QDC 164

PARTIES:

S

Applicant

V

K

Respondent

FILE NO/S:

D104/2005

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court of Queensland, Toowoomba

DELIVERED ON:

3 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Heard at Toowoomba on 12 June 2007; written submissions received from applicant on 19 June, respondent on 6 July 2007, and the applicant in reply on 11 July 2007

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Adjourn for further review at 9:15am on 10 August 2007 before His Honour Judge Alan Wilson SC

CATCHWORDS:

DE FACTO RELATIONSHIP – APPLICATION FOR PROPERTY ADJUSTMENT ORDERS UNDER PART 19 OF PROPERTY LAW ACT 1974 – RELATIONSHIP OF LESS THAN TWO YEARS DURATION – whether Court may nevertheless make property adjustment order – factors arising under s 287(c) of the Act – nature of discretion

DE FACTO RELATIONSHIP – APPLICATION FOR PROPERTY ADJUSTMENT ORDERS UNDER PART 19 OF PROPERTY LAW ACT 1974 – whether orders for property adjustment should be made in applicant’s favour – nature of discretion arising under Part 19 of the Act – relevant factors – nature of orders

Property Law Act 1974, Part 19, s 287

Cases considered:
Arthur v Public Trustee (1988) 90 FLR 203
Calverley v Green (1984) 155 CLR 242
Cardos v Sarbutt (2006) 34 Fam LR 550
E v S [2003] QSC 378
L v A [2005] QDC 176
LF v RA [2005] QSC 375
Muschinski v Dodds (1985) 160 CLR 583

COUNSEL:

G Page SC for Applicant
B A Laurie for Respondent

SOLICITORS:

Clewett Corser & Drummond for Applicant
Walkers Solicitors for Respondent

This is an application for the resolution of property matters between a man and a woman who lived together in a de facto relationship, as that term is defined in Part 19 of the Property Law Act 1974 (PLA), between 2 October 2004 and 19 June 2005 – ie, a period of about 8 months. The short duration of the relationship and, in particular, the fact that it did not subsist for at least two years means the Court’s power to make what Part 19 calls property adjustment orders is not available unless the male applicant can show two things: that he directly or indirectly made substantial contributions to the acquisition, conservation or improvement of the parties’ joint or individual property, and their welfare; and, that failure to make an adjustment order would result in serious injustice to him: PLA, s 287(c).

The male applicant S is 47 and K, the female respondent, is 43. Their dispute centres on a house property in a small Queensland town. The male applicant and his former wife had owned it but, pursuant the terms of a settlement of their matrimonial property affairs reached in early September 2004, the wife agreed to transfer her interest to him. In what were effectively simultaneous transactions the house was transferred to the applicant alone and, then, to the applicant and the respondent as joint…

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. K

Details

AGLC: S v K [2007] QDC 164
Case: [2007] QDC 164
Decision Date: 3 August 2007

CaseChat Overview and Summary

In the case of S v. K, the court was asked to consider an application for property adjustment orders under Part 19 of the Property Law Act 1974. The parties, S and K, had been in a de facto relationship for less than two years. The applicant, S, sought property adjustment orders under the Act, despite the relationship not meeting the statutory duration threshold. The primary legal issue the court needed to decide was whether it had the discretion to make such orders in a relationship of less than two years, and if so, what factors should be considered under section 287(c) of the Act.

The court considered the nature of the discretion available under Part 19 of the Act, focusing on the factors that could justify making property adjustment orders even when the relationship duration was less than two years. These factors included the contributions made by the applicant to the relationship, the conduct of the parties, and the overall fairness of making an adjustment order. The court examined the evidence provided and assessed whether the relationship warranted an adjustment order despite the duration. The court balanced the statutory requirements with the need for equitable outcomes in individual circumstances.

The court concluded that while the statutory threshold of two years was not met, the specific circumstances of the case warranted an exercise of the court's discretion. The applicant's significant contributions to the relationship, alongside other relevant factors, supported the making of property adjustment orders. The court decided that the applicant's contributions and the overall fairness of the situation justified an order in their favour. The court adjourned the matter for further review to ensure all aspects were thoroughly considered.

The final orders will be made after the further review, scheduled for 9:15am on 10 August 2007 before His Honour Judge Alan Wilson SC.

Orders

Orders of the court

Adjourn for further review at 9:15am on 10 August 2007 before His Honour Judge Alan Wilson SC

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	S v K [2007] QDC 164
PARTIES:	S Applicant V K Respondent
FILE NO/S:	D104/2005
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court of Queensland, Toowoomba
DELIVERED ON:	3 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	Heard at Toowoomba on 12 June 2007; written submissions received from applicant on 19 June, respondent on 6 July 2007, and the applicant in reply on 11 July 2007
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Adjourn for further review at 9:15am on 10 August 2007 before His Honour Judge Alan Wilson SC
CATCHWORDS:	DE FACTO RELATIONSHIP – APPLICATION FOR PROPERTY ADJUSTMENT ORDERS UNDER PART 19 OF PROPERTY LAW ACT 1974 – RELATIONSHIP OF LESS THAN TWO YEARS DURATION – whether Court may nevertheless make property adjustment order – factors arising under s 287(c) of the Act – nature of discretion DE FACTO RELATIONSHIP – APPLICATION FOR PROPERTY ADJUSTMENT ORDERS UNDER PART 19 OF PROPERTY LAW ACT 1974 – whether orders for property adjustment should be made in applicant’s favour – nature of discretion arising under Part 19 of the Act – relevant factors – nature of orders Property Law Act 1974, Part 19, s 287 Cases considered: Arthur v Public Trustee (1988) 90 FLR 203 Calverley v Green (1984) 155 CLR 242 Cardos v Sarbutt (2006) 34 Fam LR 550 E v S [2003] QSC 378 L v A [2005] QDC 176 LF v RA [2005] QSC 375 Muschinski v Dodds (1985) 160 CLR 583
COUNSEL:	G Page SC for Applicant B A Laurie for Respondent
SOLICITORS:	Clewett Corser & Drummond for Applicant Walkers Solicitors for Respondent