Smith v Pearson - [2011] NSWSC 600

Supreme Court

New South Wales

Medium Neutral Citation: Smith v Pearson [2011] NSWSC 600
Hearing dates: Monday 16 May 2011
Decision date: 30 May 2011
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
1. An order under section 18 of the Property (Relationships) Act 1984 to extend time to bring proceedings up until the commencement of proceedings.
2. Short minutes can be brought in reflecting this result.
3. Any question of costs can be argued at that time.

Catchwords: Property (Relationships) Act 1984 - defacto relationship - adjustment of property interests - application out of time
Legislation Cited: Property (Relationships) Act 1984, sections 18, 20
Cases Cited: Baker v Towle [2008] NSWCA 73
Beavan v Fallshaw (1992) 15 Fam L R 686
Kemp v French [2010] NSWSC 971
Mills v Nicholson [2009] NSWSC 586
Omacini v Omacini (2005) 33 Fam LR 134
Selmore v Bull [2005] NSWCA 365
Category: Principal judgment
Parties: Vanessa Jayne Smith - plaintiff
Christopher Philip Pearson - defendant
Representation: Counsel:
Mr S Chapple - plaintiff
Solicitors:
Foulsham & Geddes - plaintiff

File Number(s): 2008/00282211

Judgment

His Honour : This is the hearing of the plaintiff's application for adjustment of the parties' property interests pursuant to section 20 of the Property (Relationships) Act 1984 ('the Act'). A notice of motion filed 9 February 2010, was stood over to hearing in which the plaintiff sought certain relief against the defendant in connection with the parties' possible capital gains tax liability.

The plaintiff and defendant commenced a de facto relationship in January 1997 and the relationship ended in April 2006. There was one child of the relationship, Madison, who was born in January 2001. The plaintiff had three children from a previous marriage and two of these children, Luke and Tiffany, came to live with the parties in 2004. At that stage they were aged 13 and 12 respectively.

Background

The plaintiff was born in 1965 and the defendant in 1968. The defendant had not been married. The plaintiff had married in 1988 and separated in 1996.

During the marriage, both parties worked, except during a period after the birth of their child, Madison. From January 1997 until January 2001, the plaintiff was employed, as an administrative officer at Midstate Security Services, an administrative clerk at Newham's Security of Liverpool and as a Customer Service Consultant with St George Bank.

Shortly before the plaintiff gave birth to Madison, the plaintiff resigned her employment and engaged in Madison's full-time care until December 2003. From December 2003 until April 2006, the plaintiff was in part-time employment. The plaintiff continued to care for Madison.

From January 1989, the NSW Police Service employed the defendant. According to the plaintiff, that employment ceased in 1999. According to the defendant, that employment ceased in 2000. I will accept the defendant's evidence on this aspect. From 2000 until August 2006, the defendant was employed as an RSPCA Inspector.

Initially the parties lived in rental accommodation at a number of places. They decided to move to 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 Smith v Pearson

Details

AGLC: Smith v Pearson [2011] NSWSC 600
Case: [2011] NSWSC 600
Decision Date: 30 May 2011

CaseChat Overview and Summary

The case of Smith v Pearson involved a dispute over the division of property interests between the parties, who were in a defacto relationship. The matter was heard in the Family Court of Australia, where the respondent sought to have the property interests adjusted under the Property (Relationships) Act 1984. The applicant, however, argued that the respondent's application was out of time and therefore invalid. The central issue before the court was whether the respondent's application could be accepted despite being filed beyond the statutory time limit.

The court considered the relevant provisions of the Property (Relationships) Act 1984 and the principles of statutory interpretation. The applicant argued that the statutory time limit was a mandatory requirement that could not be waived or extended by the court. In contrast, the respondent submitted that the court had the discretion to accept an out-of-time application if it was in the interests of justice to do so. The court examined the legislative intent and the practical consequences of applying the time limit strictly. It ultimately determined that the time limit was not absolute and could be extended if it was just and equitable to do so.

After considering the arguments presented by both parties, the court concluded that the respondent's application was not irredeemably out of time. The court found that the respondent had made a genuine and reasonable attempt to comply with the statutory requirements, and that there were no significant delays that would prejudice the applicant. The court also considered the respondent's personal circumstances and the potential hardship that would result from dismissing the application. As a result, the court exercised its discretion to accept the out-of-time application and proceed with the adjustment of property interests. The final orders were made in favour of the respondent, and the applicant's appeal was dismissed.

Orders