Smith v Pearson
[2011] NSWSC 600
•30 May 2011
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 365Category: Principal judgment Parties: Vanessa Jayne Smith - plaintiff
Christopher Philip Pearson - defendantRepresentation: 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 South Coast because of the relocation of the defendant's employment and in September 2000, the defendant purchased a property at Wirreanda Place, Long Beach near Bateman's Bay for $167,000. The defendant had shortly before received a retirement payout from the police force of $46,547.17. He used to $22,471 from this payout to contribute to the purchase and the balance was borrowed from the St George Bank in the sum of $148,000.
At the end of 2001, the defendant incorporated a company Seiei Pty Ltd. At that stage the defendant was the only shareholder. The defendant refinanced the existing mortgage on their property by taking a new mortgage in the name of the company.
In 2003, the company purchased an investment property at Narooma for $267,000. After some minimal refurbishments, the property was rented at $250 per week. On a 23 July 2004, the plaintiff was appointed an additional director of the company and issued with 50 fully paid ordinary shares in the company. The defendant held 100 fully paid ordinary shares in the company.
As I have mentioned the parties separated in April 2006 and on 14 June 2006, the plaintiff left the Wirreanda property. Thereafter there were disputes concerning the residence arrangements for their child Madison. The upshot is that she resided with the defendant and thereafter the plaintiff made child support payments to the defendant for her care.
In December 2006, the company sold the Narooma investment property for $290,000. After paying out the mortgage and also the finance on the car, which the plaintiff took on separation, there was a balance of $47,000 which was initially held in a St George Bank account in the name of the company.
On 13 July 2008, the company Seiei Pty Ltd was deregistered. On 28 November 2008, the defendant withdrew $47,483.78 from the company's account. The defendant transferred these funds into a Police Credit Union account in the defendant's sole name. He has subsequently used those funds for his living expenses. Seiei Pty Ltd has a liability for unpaid CGT in respect of this sale. That liability is at present unknown.
These proceedings were commenced out of time on 18 December 2008.
Extension of time
The plaintiff seeks an extension of time within which she may bring the proceedings. Section 18 of the Property (Relationships) Act is in the following terms:
"18 Time limit for making applications
(1) If a domestic relationship has ceased, an application to a court for an order under this Part can only be made within the period of 2 years after the date on which the relationship ceased, except as otherwise provided by this section.
(2) A court may, at any time after the expiration of the period referred to in subsection (1), grant leave to a party to a domestic relationship to apply to the court for an order under this Part (other than an order under section 27 (1) made where the court is satisfied as to the matters specified in section 27 (1) (b)) where the court is satisfied, having regard to such matters as it considers relevant, that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted.
(3) Where, under subsection (2), a court grants a party to a domestic relationship leave to apply to the court for an order under this Part, the party may apply accordingly."
In Selmore v Bull [2005] NSWCA 365 the (then) President of the Court of Appeal had the following to say in respect of the section:
"12. The applicable principles were not in dispute. Section 18 does not lay down a general time-limit, giving a discretion to the Court to extend it. Rather, it makes two different provisions. That found in subsection (2) is expressed in terms of power to grant leave to apply, not as a power to extend the primary time limit. As Bryson J. pointed out in Beavan v Fallshaw (1992) 15 Fam L R 686 at 687:
This section appears... to treat an application for leave to apply as a normal event, calling for the Court to consider two stages, a finding relating to hardship and the exercise of discretion, without any special jealousy for the observance of the time limit or particular concern for it... In considering whether a Court should exercise of discretion conferred by statute to make an order in favour of some course, it is usual to consider whether there is a sound and positive ground or a good reason for making the order. Ultimately however it is not... legally necessary to define exactly the ground on which a discretion is exercised favourably to an applicant.
13. It is not mandatory that there be an explanation for delay ( Carlon v Carlon (1982) FLC 91-272).
And later at paragraph 20:
"The Master correctly recognized that section 18 (2) required him to consider the preponderance of hardship and also whether the residual discretion ought to be exercised in the applicant's favour. His reasons for a favourable exercise of discretion are found at pages 58 to 67 and 80."
I also note that the question of delay is referred to by Bryson J in the case of Beavan v Fallshaw to which the President referred in Selmore v Ball in these terms:
"The section appears to me to treat an application for leave to apply as a normal event calling for the Court to consider two stages, a finding relating to hardship, and the exercise of discretion."
At page 687 he said:
"I regard it as relevant to the exercise of that discretion to consider what explanation for delay is offered, but my primary concern ought, in my opinion, to be whether the case put forward is an appropriate case for the plaintiff to apply for an order."
The plaintiff accepted that she must demonstrate that she will suffer hardship if leave is not granted and that this outweighs any detriment to the defendant if leave is granted: Kemp v French [2010] NSWSC 971 at [13] per Hallen AJ. See also Mills v Nicholson [2009] NSWSC 586.
Her submission was that she would suffer significant hardship if leave is not granted because:
(a) She presently has assets of approximately $200.
(b) She made significant financial and non-monetary contributions to the finances of the parties and to the welfare of the defendant and their family during the term of their relationship.
(c) The defendant is the sole registered proprietor of the Wirreanda Property, and other assets to which it is argued that the plaintiff contributed.
The plaintiff also points out that the defendant was put on notice of a potential claim in May 2006 (one month after the conclusion of the relationship) as a result of a caveat over the Wirrendea Property that she lodged on 25 May 2006. The plaintiff claimed an interest in the property pursuant to section 8 of the Act. There is no explanation for the delay but the period of delay is not substantial.
In order to decide this matter it is necessary for me to consider the nature of the claim she has made, which she would lose if an extension of time is not granted and also any detriment the defendant will suffer. I will now turn to the nature of claim and will return later to the question of whether leave should be given.
The principles to be applied
The factors which the Court must consider are set out in section 20 of the Act as discussed by Basten JA in Baker v Towle [2008] NSWCA 73 .
"[43] It has been said in a number of cases that the application of s 20 involves three steps, which were identified in Howlett v Neilson [2005] NSWCA 149 (Hodgson JA, Ipp and McColl JJA agreeing) in the following terms at [25]:
(1) identification and valuation of the property of the parties;
(2) identification and valuation of the respective contributions of the parties, of the types referred to in s 20;
(3) determination of what if any order is just and equitable having regard to these contributions.
[44] What questions arise will, of course, depend to some extent on the circumstances of the individual case. For example, in some cases there will be an antecedent question as to whether the applicant is a party to a "domestic relationship" as defined in s 5 of the Act: see, eg, Delany v Burgess [2007] NSWCA 360. Otherwise, each of the three steps referred to above may require some further elucidation."
In this case there is no dispute about the existence of the relationship. I will address the property of the parties at the commencement of the relationship, its conclusion and at the hearing.
Property at the commencement of the relationship.
The plaintiff said that she had the following assets and liabilities at the commencement of the relationship:
Assets
Estimated Value
a. Joint registered proprietor of a property at Beavis Place, Bathurst
$220,000
b. Honda Accord motor vehicle, 1994 model.
$32,000
c. Interest as a shareholder in a company, Tanfire Pty Limited, that was used by the plaintiff's ex-husband to conduct his painting business.
$30,000
d. A joint cheque account tied to the home loan. It is estimated that this account had a credit balance of approximately $5,000
$5,000
Total:
$287,000
Liabilities
Estimated Value
a. Home loan to National Australia Bank in the approximate amount of $180,000
$180,000
b. A chattel mortgage from Toyota Finance. This was for the purchase of the Honda motor vehicle.
$24,000
Total:
$204,000
She gave the following evidence of the resolution of her property affairs with her former husband shortly after she commenced living with the defendant:
"All of the assets held by Kerry Sanders and myself were subject to a claim for property adjustment pursuant to Part VIII of the Family Law Act 1975.
Neither Kerry Sanders nor I commenced proceedings under the Family Law Act for a property adjustment. Shortly after our separation, Kerry Sanders sold Beavis Place, Bathurst. After the payment of the mortgage debt and the discharge of the overdraft for KJ & VJ Sanders Painting Contractors, the nett proceeds of sale amounted to approximately $14,000.00. This sum was paid into a controlled money account under the control of McIntosh, McPhillamy & Co, Solicitors of Bathurst.
Kerry Sanders sold the Honda motor vehicle. The proceeds of sale were enough to pay out the Toyota Finance chattel mortgage."
The $14,000 was set aside for her children and she came to the relationship with effectively only some furniture and personal effects.
The defendant had the following assets at the commencement of the relationship:
Assets
Estimated Value
a. State Authorities Superannuation Scheme (Police Service)
$16,903.52
b. Holden Utility motor vehicle - 1990 model
$1,500.00
c. Sundry items of furniture
$2,000.00
d. Money held in cheque account
$500.00
Total:
$20,903.52
Liabilities
Estimated Value
Nil
Property at the conclusion of the relationship
The plaintiff's assets are the following:
Assets
Estimated Value
a. My interest in Seiei Pty Limited ACN 099 040 508 (on a liquidation basis), being 50 fully paid ordinary shares
unknown
b. Mazda 3 Sedan, 2004 model
$21,000
c. Furniture and household contents of the Wirreanda Place property
$13,000
d. My superannuation entitlement as a member of the Plum Personal Plan
$8,000
e. Shares in St George Bank
$2,200
TOTAL
E$44,200
Liabilities
Estimated Value
a. Guarantee of the mortgage to Perpetual Trustees Limited, secured on the Wirreanda Property and the Narooma Property (50%)
$111,000.00
b. Credit card debt to St George Bank
$7,000.00
TOTAL
E$118,000.00
It is worth noting that the Narooma property was sold not long after separation and the mortgage was paid out, as well as the finance on the car that the plaintiff took over. After that, the balance left was $47,483.78, to which I have referred earlier. There was a dispute between the plaintiff and the defendant as to the value of the items of furniture taken by the plaintiff after separation. According to the defendant, the replacement cost of the items was about $25,000. The plaintiff in cross-examination suggested that the cost was far less, the furniture having a value of no more than $6,000. I will accept the plaintiff's estimate in her affidavit of $13,000 as the defendant's evidence when compared with the cost of these items seems excessive.
The defendant's assets and liabilities are:
Assets
Estimated Value
a. Property at 23 Wirreanda Place, Long Beach
$180,000.00
b. Superannuation with MLC Nominees Pty Limited
$2,013.47
c. St George Bank - money held in cheque account
$200.00
d. Net value of 66 2/3% shareholding in Seiei Pty Ltd (value calculated based on value of narooma property as at date of separation of $250,000 less mortgage debt of $239,378.78 attributable to Narooma leaving an equity of $10,621.22)
$7,081.00
(The Narooma property was sold on 18 December 2006 for $290,000)
$189,294.47
TOTAL
378,588.94
Liabilities
Estimated Value
a. Mortgage loan no. 162453 (Wirreanda)
$135,354.33
b. Mortgage loan no. 162454 (Narooma)
$35,204.43
c. Mortgage loan no. 231167 (Mazda NEo)
$23,493.01
d. Mortgage loan no. 296174 (Narooma)
$95,017.99
e. Mortgage loan no. 296171 (Narooma)
$95,874.98
f. IMB Card Services - Citibank credit card
$3,787.40
g. ANZ Bank Everyday Visa Card
$4,711.00
h. St. Bernards school fee
$3,755.80
i. Seiei Pty Ltd Capital Gains Tax
$to be advised
j. Council rates Long Beach
$1,730.00
k. Council Rates Narooma
$1,200.00
Total:
$400,128.00
There are a number of things to consider in respect of the above evidence. First, there is a valuation in evidence of the Wirreanda property at 14 June 2006 giving its value at $395,000. It also gave a value of the house with some unidentified proposed extension of $480,000. There is no evidence that these extensions were completed.
The second consideration is that the position with regard to the Narooma property is better gauged by the results of the sale.
Property of the parties at the hearing
The plaintiff's assets and liabilities were said to be:
Assets
Estimated value
a. Interest in Seiei Pty Limited ACN 099 040 508 (on a liquidation basis) being 50 fully paid shares
unknown
b. Mazda 3 Sedan, 2004 model
$6,000
c. Superannuation entitlement:
i. as a member of the Plum Personal Plan as at 20 December, 2010
ii. as a member of the BankWest Superannuation Fund
$9,500
$3,500
d. Credit balances in bank accounts:
i. BankWest Account No. 000280-9 BSB: 302-976 as at 20 December 2010
$700
e. Furniture and household items
$5,000
Liabilities
Estimated Value
a. Contingent liability for unpaid CGT by Seiei Pty Limited
unknown
b. Loan advance from CreditCorp Group
$22,000
c. GE Credit Line
E $2,500
The defendant gave his assets and liabilities as follows:
Assets
Estimated value
a. Property at Wirreanda Place, Long Beach
$325,000
b. Mitsubishi Magna motor vehicle (1996)
$3,000
c. Television
$3,000
d. Dining room table and chairs
$300
e. Double bed
$400
f. Washing Machine
$300
g. Tools
$2,000
h. Police Credit Union - personal bank account
$1,000
i. Superannuation with Australian Reward Investment Alliance (ARIA)
$28,791.12
Total:
$363,791.12
Liabilities
Estimated Value
a. Mortgage secured over property at Long Beach to perpetual Trustees Victoria Limited
$245,000
b. Citibank - credit card
$4,711
c. ANZ Bank - credit card
$3,500
d. Share Capital Capital Gains Tax - Seiei Pty Ltd
To be advised
e. Moray & Agnew - legal costs of and incidental to an application to the Family Court in Canberra against the plaintiff concerning an application for living with and spending time with our daughter Madison
$28,177.38
f. Boyd House & Partners - estimated legal costs
$20,000
Total:
$301,388.38
The evidence showed that the Wirreanda Place property had a value of $340,000 at February this year. Plainly there has been a substantial fall in its value from the time of separation.
It seems that the house has not been occupied since separation. It also has not been let. The defendant has continued to make the mortgage payments since separation with no assistance from the plaintiff.
Financial contributions by the parties
Throughout the period of the relationship, the parties pooled their earnings and paid expenses out of each other's bank accounts. There is no evidence of either party having applied any of their funds to their own separate purposes - the family needed all the available income in order to support the family.
The plaintiff' submitted a summary of the actual financial contributions that each made in these terms:
"The plaintiff made the following contributions to the property or financial resources of the parties:
(a) Approx. $34,000 (after tax) from employment at Midstate Security Services from January 1997 to June 1998 (Approx. 68 weeks at $500 per week).
(b) Approx. $30,000 to $45,000 (after tax) from employment at Newham's Security of Liverpool and St George Bank from June 1998 to January 2001 (Approx. 78 weeks at $420-$600 per week).
(c) $2,740 (before tax) from employment at IMB Limited from December 2003 to February 2004.
(d) $37,917 (before tax) from employment at St George between July 2004 to June 2005.
(e) Approx. $30,000 (before tax) from employment at St George between July 2005 to April 2006.
The plaintiff therefore made a total financial contribution of approximately $134,000 to $149,000. In addition, the plaintiff contributed to the maintenance and upkeep of the Wirreanda Property.
The defendant made the following contributions to the property or financial resources of the parties:
(a) Defendant had assets of $20,903 at time of commencement of relationship.
(b) Approx. $110,000 - $120,000 (before tax) from employment by NSW Police Service between January 1997 to February 2000.
(c) Superannuation payout of $46,547.16 (note that there is an element of double counting here, because superannuation assets of $16,903 were counted in the defendant's initial assets).
(d) Long service leave entitlements of $8,000.
(e) Approx. $13,000 (before tax) for employment as RSPCA Inspector between February 2000 and June 2000 (calculated based on salary in 2002).
(f) Approx. $42,380 (before tax) for employment as RSPCA Inspector between July 2000 and June 2001 (calculated based on salary in 2002).
(g) Approx. $42,380 (before tax) for employment as RSPCA Inspector between July 2001 and June 2002 (calculated based on salary in 2002).
(h) Approx. $42,380 (before tax) for employment as RSPCA Inspector between July 2002 and June 2003 (calculated based on salary in 2002).
(i) Approx. $43,706 (before tax) for employment as RSPCA Inspector between July 2003 and June 2004 (calculated based on salary in 2004).
(j) Approx. $48,606 (before tax) for employment as RSPCA Inspector between July 2004 and June 2005 (calculated based on salary in 2005).
(k) Approx. $35,000 to $40,000 (before tax) for employment as RSPCA Inspector between July 2005 and April 2006 (calculated based on salary in 2006).
(l) The defendant therefore made a total financial contribution of approximately $335,000 to $351,000.
On this basis, taking the approximate contributions of both the plaintiff and the defendant at their highest (and ignoring the difficulty's associated with the calculation of tax), the plaintiff contributed in the order of 25% - 30% of the total finances of the parties during the period of their relationship."
These submissions accurately reflect the evidence in the case and accordingly I adopt them as the financial contributions of the respective parties during the period of the relationship.
Non-financial contributions
In so far as household domestic duties are concerned, it should be noted that from time to time the defendant was away as a result of his job. He also worked long hours. In these circumstances it seems that the plaintiff carried out by far the greater proportion of these duties.
In terms of looking after Madison, from January 2001 until December 2003, when the plaintiff returned to the workforce, the plaintiff was engaged full-time caring for Madison. This is not to say that the defendant did not assist. It was his first child and I accept his evidence that he also, when he could, contributed to care for Madison. After December 2003, both parties contributed to care for Madison.
In addition the defendant gave support to the plaintiff during Family Court proceedings concerning the parties' access to children from her previous marriage. Also when those children came in 2004 to reside with the parties the defendant fulfilled the role of father particularly for Luke.
The pool of property
The assets available to the parties from their relationship appear to be the following:
(a) Proceeds of the sale of the Narooma property represented by the amount of $47,483.78.
(b) The car taken by the plaintiff at the conclusion of the relationship, which had its finance paid out on the sale of the Narooma property. It was valued at separation at $21,000 and at present at $6,000.
(c) The furniture taken by the plaintiff on separation: $13,000
(d) Furniture and tools kept by the defendant at $6000.
(e) The equity in Wirreanda Place of $95,000.
Each party had superannuation. The plaintiff' had $13,000 and the defendant had $28,791.12. There is a question of whether there should be any adjustment in respect of this superannuation. For many years the only case which gave guidance on the matter was Green v Robinson (1995) 36 NSWLR 96. Although there is some dispute about what the majority said, one view seems to be that comments of Powell JA and Cole JA were that there had to be demonstrated some factual matter that would enable one to form a view that there had been a contribution to a spouse's superannuation entitlement. The Court of Appeal in Chanter v Catts [2005] NSWCA 411 dealt with the matter. Hunt AJA adopted Bryson JA views at paragraphs 82 to 90 and Hodgson JA substantially agreed with them. The views of the Powell JA and Cole JA were rejected and the approach of Kirby P, who had dissented, was adopted. Accordingly, superannuation entitlements are not to be viewed as belonging to the parties separately but as financial resources of the parties which need to be adjusted having regard to contributions "made directly or indirectly" by them. Normally the court will take a global view of the matter. I note that the plaintiff's superannuation is 32 per cent of the total of the parties' superannuation.
It is not appropriate to take into account the other liabilities of each party as they represent matters occurring after the conclusion of the relationship. See Omacini v Omacini (2005) 33 Fam LR 134. The one exception is the capital gains tax liability. As no income-tax returns of the company have been filed for the two years prior to its being struck off, it is difficult to see what would be the capital gains tax. The increase in value over the period of ownership was $23,000 so the potential liability is at least in the order of $11,500. Given that the Taxation Department is aware of the liability it may be that the parties will receive some form of assessment in respect of that liability. The ownership of the property was effectively 50 shares to the plaintiff and 100 shares to the defendant. In these circumstances, it is probably appropriate to make orders reflecting that the parties should share any future capital gains tax liability in that proportion.
There has been the extraordinary situation that the former matrimonial home has not been occupied since separation. According to the plaintiff, there were problems with the electrical wiring and problems with the drive, with which she found it difficult to cope when they were residing in the premises. The evidence before me did not address whether or not the property was capable of occupation. Clearly the plaintiff had nothing to do with the property after separation. After the defendant's employment in the area terminated at the end of 2006 the property has been vacant. The defendant visits it regularly to check the upkeep and security.
In these circumstances there is probably not a situation where a party has acted recklessly in respect of the asset. The loss of value was the result of market forces and the parties should share it. It is appropriate to make an adjustment of their respective interests.
Another question that arises is whether there should be some credit for the defendant as a result of him preserving the asset to the present time by making mortgage payments. It was his decision to retain it and this has resulted in a loss to both parties. In these circumstances I do not think it appropriate to give him credit for the mortgage payments.
Conclusion
The plaintiff in submissions sought an order giving her 40 per cent of the pool of assets and an order that she be liable for one third of the GST liability. For his part the defendant had sought an order that there be no adjustment and that the parties share of the GST liability equally.
The defendant's financial contributions were between 70 to 75 per cent of the total financial contributions. However, the plaintiff's non-financial contributions were greater than that of the defendant as a result of her full-time care of their child for nearly three years.
There has been a partial distribution of property at separation with the plaintiff retaining 39 per cent of that property and the defendant retaining 61 per cent. The total superannuation held by the plaintiff is 32 per cent and the defendant holds 68 per cent.
Having regard to the contributions and on the basis that all the property taken at separation is not distributed, I think it appropriate that the plaintiff receives by way of adjustment 40 per cent of the Wirreanda Place property.
Having regard to the conclusions which I have reached above it is necessary to return to the question of whether the parties should be given leave to commence the proceedings out time.
Even before costs, the pool of assets is small. The defendant represented himself in proceedings and it appears that the plaintiff initially received some pro-bono assistance from Gooden & Associates Solicitors, However, during proceedings the plaintiff appointed a new solicitor, Ian Foulsham of Foulsham & Geddes to act. In these proceedings, counsel, Mr Chapple, represented the plaintiff. She has been charged a small amount for costs by the solicitors.
In relation to any detriment the defendant would suffer if an order is made grating an extension of time to bring proceedings, during proceedings the defendant made submissions to the effect that:
(a) He has secured a reasonably good job and is currently on a six month probation (T 83 line 43)
(b) He and Madison live fairly humbly in a rented apartment in Ballina and Madison goes to a private school (T 85 line 29)
(c) He has debts of about $76,000 (T 87 line 34)
Neither the plaintiff nor the defendant are relatively well-off and the costs (if any), or disbursements, or both, incurred in these proceedings will have a significant detrimental effect on both sides. However, on balance the plaintiff has no other assets outside the parties' shared property and therefore if leave is not granted she will suffer hardship outweighing any detriment the defendant will suffer if leave is granted.
I will make an order under section 18 of the Act to extend time to bring proceedings up until the commencement of proceedings.
Short minutes can be brought in reflecting this result. Any question of costs can be argued at that time.
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Decision last updated: 20 June 2011
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