SAM v IDP - [2006] QSC 344

SUPREME COURT OF QUEENSLAND

CITATION:

SAM v IDP; IDP v SAM [2006] QSC 344

PARTIES:

SAM
(applicant)
v
IDP
(respondent)

IDP
(applicant)

v
SAM
(respondent)

FILE NO/S:

BS8642 of 2006

BS7608 of 2006

DIVISION:

Trial Division

PROCEEDING:

Originating Applications

ORIGINATING COURT:

Brisbane

DELIVERED ON:

20 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6 November 2006

JUDGE:

Mackenzie J

ORDER:

In 8642/06:

1. That pursuant to s 288(1)(b) of the Property Law Act 1974 (Qld), the applicant be granted leave to apply for a property adjustment order notwithstanding that such application has not been made within two years after the day on which the parties’ de facto relationship ended.

2.   That the application for property adjustment referred to in paragraph 2 of the originating application be adjourned to a date to be fixed.

3.   That the applicant pay the respondent’s costs of and incidental to the application for leave to apply for a property adjustment order.

In 7608/06:

1.   That the application be adjourned to a date to be fixed.

2.   That costs be reserved.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE-FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – OTHER MATTERS – where de facto spouse applied for leave to apply for a property adjustment order under Part 19 of the Property Law Act 1974 (Qld) – where more than two years have elapsed since the relationship ceased – where the applicant had a sufficient explanation as to the delay – whether the applicant would suffer ‘hardship’ if denied leave to apply

REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – QUEENSLAND – where de facto spouse applied for appointment of trustees for sale under s 38 Property Law Act 1974 (Qld) – where applicant unable to continue to meet mortgage repayments – where respondent concurrently applied for leave to apply for a property adjustment order – whether application should be adjourned

Family Law Act1975 (Cth) s 44(4)
Property Law Act 1974 (Qld) s 38, s 288(1)(b)

Deves v Porter (Unreported, Supreme Court of New South Wales, Campbell J, 1 August 2003), cited
In the Marriage of Neocleous (1993) 113 FLR 451, followed
In the Marriage of Whitford [1979] FLC 90-612, followed
In the Marriage of Mackenzie [1978] FLC 90-496, followed

COUNSEL:
W Westbrook for the applicant/respondent
J D Hogan for the respondent/applicant

SOLICITORS:

South & Geldard Solicitors for the applicant/respondent
Hartley Family Law Services for the respondent/applicant

MACKENZIE J: By an originating application 7608 of 2006 filed 17 September 2006 IDP applies for the appointment of statutory trustees for sale pursuant to s 38 of the Property Law Act 1974 in respect of two contiguous lots, Lots 18 and 19, in Rockhampton. SAM who resides in a house on Lot 19 has by originating application 8642/06, applied for leave to apply for a property adjustment order under Part 19 of the Property Law Act. Leave is required to commence those proceedings because more than two years have elapsed from when the…

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 SAM v IDP

Details

AGLC: SAM v IDP [2006] QSC 344
Case: [2006] QSC 344
Decision Date: 20 November 2006

CaseChat Overview and Summary

The proceedings in the case of SAM v IDP involved a de facto couple who had ceased their relationship. SAM, the applicant, sought leave to apply for a property adjustment order under Part 19 of the Property Law Act 1974 (Qld) and requested the appointment of trustees for sale under s 38 of the same Act. The legal dispute centred around the applicant’s delay in making the application for a property adjustment order, which was more than two years after the relationship ended, and the applicant’s inability to continue meeting mortgage repayments on the jointly owned property.

The central legal issue before the court was whether SAM would suffer hardship if leave to apply for a property adjustment order was denied. Given that the application was filed outside the two-year period, the court had to consider if the delay could be sufficiently explained and whether exceptional circumstances justified granting leave under s 288(1)(b) of the Act. Additionally, the court had to decide whether the application for property adjustment should be adjourned due to the respondent’s concurrent application for leave to apply for a property adjustment order.

The court granted SAM leave to apply for a property adjustment order, finding that the applicant had provided a satisfactory explanation for the delay. The court recognised that the applicant's financial situation constituted hardship, which warranted the granting of leave. Furthermore, the court decided to adjourn the application for property adjustment to a later date to allow for further consideration. The costs associated with the application for leave to apply for a property adjustment order were ordered to be paid by SAM. In relation to the application for appointment of trustees for sale, the court also decided to adjourn it to a future date. The costs of this application were reserved.

The court’s final orders included granting SAM leave to apply for a property adjustment order despite the delay, adjourning the application for property adjustment, and directing that SAM pay the respondent's costs for the application for leave. The application for appointment of trustees for sale was similarly adjourned, with costs reserved.

Orders

Orders of the court

In 8642/06:

1. That pursuant to s 288(1)(b) of the Property Law Act 1974 (Qld), the applicant be granted leave to apply for a property adjustment order notwithstanding that such application has not been made within two years after the day on which the parties’ de facto relationship ended.

2. That the application for property adjustment referred to in paragraph 2 of the originating application be adjourned to a date to be fixed.

3. That the applicant pay the respondent’s costs of and incidental to the application for leave to apply for a property adjustment order.

In 7608/06:

1. That the application be adjourned to a date to be fixed.

2. That costs be reserved.

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:	SAM v IDP; IDP v SAM [2006] QSC 344
PARTIES:	SAM (applicant) v IDP (respondent) IDP (applicant) v SAM (respondent)
FILE NO/S:	BS8642 of 2006 BS7608 of 2006
DIVISION:	Trial Division
PROCEEDING:	Originating Applications
ORIGINATING COURT:	Brisbane
DELIVERED ON:	20 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	6 November 2006
JUDGE:	Mackenzie J
ORDER:	In 8642/06: 1. That pursuant to s 288(1)(b) of the Property Law Act 1974 (Qld), the applicant be granted leave to apply for a property adjustment order notwithstanding that such application has not been made within two years after the day on which the parties’ de facto relationship ended. 2. That the application for property adjustment referred to in paragraph 2 of the originating application be adjourned to a date to be fixed. 3. That the applicant pay the respondent’s costs of and incidental to the application for leave to apply for a property adjustment order. In 7608/06: 1. That the application be adjourned to a date to be fixed. 2. That costs be reserved.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE-FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – OTHER MATTERS – where de facto spouse applied for leave to apply for a property adjustment order under Part 19 of the Property Law Act 1974 (Qld) – where more than two years have elapsed since the relationship ceased – where the applicant had a sufficient explanation as to the delay – whether the applicant would suffer ‘hardship’ if denied leave to apply REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – QUEENSLAND – where de facto spouse applied for appointment of trustees for sale under s 38 Property Law Act 1974 (Qld) – where applicant unable to continue to meet mortgage repayments – where respondent concurrently applied for leave to apply for a property adjustment order – whether application should be adjourned Family Law Act1975 (Cth) s 44(4) Property Law Act 1974 (Qld) s 38, s 288(1)(b) Deves v Porter (Unreported, Supreme Court of New South Wales, Campbell J, 1 August 2003), cited In the Marriage of Neocleous (1993) 113 FLR 451, followed In the Marriage of Whitford [1979] FLC 90-612, followed In the Marriage of Mackenzie [1978] FLC 90-496, followed
COUNSEL:	W Westbrook for the applicant/respondent J D Hogan for the respondent/applicant
SOLICITORS:	South & Geldard Solicitors for the applicant/respondent Hartley Family Law Services for the respondent/applicant