SPD v DRH - [2009] QCA 125

SUPREME COURT OF QUEENSLAND

CITATION:

SPD v DRH [2009] QCA 125

PARTIES:

SPD
(applicant/respondent)
v
DRH
(respondent/appellant)

FILE NO/S:

Appeal No 11639 of 2008
SC No 3514 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2009

JUDGES:

Keane, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed

2. The parties may make written submissions to the Court as to the costs of the appeal in accordance with Practice Direction No 1 of 2005

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – SEPARATION AGREEMENTS – where undisputed facts demonstrate appellant financially dominated respondent – where appellant challenged findings of primary judge that failed to give effect to plainly unfair agreements between parties – whether primary judge erred in the exercise of discretion to make property adjustment orders

APPEAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – PARTICULAR CASES – REFUSAL OF ADJOURNMENT – where primary judge refused application for adjournment to obtain further valuation of real property – where further valuation sought to impugn value asserted by appellant herself – whether refusal to grant application unjust

Property Law Act 1974 (Qld), s 264, s 265, s 266, s 272,
s 274, s 277

SPD v DRH [2008] QSC 254, affirmed
The Beach Retreat P/L & Anor v Mooloolaba Marina Ltd & Anor [2008] QCA 224, cited

COUNSEL:

The appellant appeared on her own behalf
P W Hackett for the respondent

SOLICITORS:

The appellant appeared on her own behalf
Evans & Company Family Lawyers for the respondent

KEANE JA:
The appellant ("Ms DRH") and the respondent ("Mr SPD") lived together in a de facto relationship within the meaning of Pt 19 of the Property Law Act 1974 (Qld) ("the Act"). They were together from no later than August 1992 until at least July 2006. After the relationship ended, Mr SPD commenced proceedings seeking a property adjustment order under Pt 19 of the Act. The focus of Mr SPD's claim was upon the house in which the parties had lived during their relationship. The proceedings came on for trial in October 2008. At that time

Ms DRH was 50 years old and Mr SPD was 60 years old.

The learned primary judge upheld Mr SPD's claim, ordering that unless Ms DRH paid $260,000 to Mr SPD within 60 days of the judgment, the house should be sold by trustees to be appointed, and the net proceeds of sale should be distributed first by a payment of $260,000 to Mr SPD, and the balance of the proceeds to Ms DRH. His Honour gave liberty to apply. His Honour also ordered that Ms DRH pay

Mr SPD's costs on the standard basis from 17 January 2008.

Ms DRH challenges…

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 SPD v DRH

Details

AGLC: SPD v DRH [2009] QCA 125
Case: [2009] QCA 125
Decision Date: 15 May 2009

CaseChat Overview and Summary

The appeal was brought by SPD, the appellant, against DRH, the respondent, concerning the adjustment of their property interests following the breakdown of their de facto relationship. The primary dispute centred on the fairness and enforceability of the separation agreement they had executed. The case was heard and determined by the Family Court of Australia.

The central legal issues before the court were whether the primary judge had erred in finding that the separation agreement between the parties was unfair and whether the primary judge had exercised their discretion to adjust the property interests in a manner that was just and equitable. The appellant contested the findings that the agreement was plainly unfair, arguing that the primary judge had not given adequate consideration to the financial dominance she had over the respondent at the time the agreement was executed.

In considering the appeal, the court noted that the primary judge had thoroughly reviewed the evidence and the circumstances surrounding the execution of the agreement. The court found that the primary judge had not erred in concluding that the agreement was unfair and that the appellant had financially dominated the respondent. Furthermore, the court held that the primary judge's decision not to adjourn the case to obtain a further valuation of the real property was not unjust, as the valuation sought was to challenge the appellant's own assertion of the property's value. The court dismissed the appeal, finding that the primary judge's decision was well-reasoned and supported by the evidence.

The court also confirmed the orders of the primary judge, dismissing the appeal and allowing the parties to submit written costs submissions in accordance with the relevant practice direction.

Orders

Orders of the court

1. Appeal dismissed

2. The parties may make written submissions to the Court as to the costs of the appeal in accordance with Practice Direction No 1 of 2005

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:	SPD v DRH [2009] QCA 125
PARTIES:	SPD (applicant/respondent) v DRH (respondent/appellant)
FILE NO/S:	Appeal No 11639 of 2008 SC No 3514 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	8 May 2009
JUDGES:	Keane, Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed 2. The parties may make written submissions to the Court as to the costs of the appeal in accordance with Practice Direction No 1 of 2005
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – SEPARATION AGREEMENTS – where undisputed facts demonstrate appellant financially dominated respondent – where appellant challenged findings of primary judge that failed to give effect to plainly unfair agreements between parties – whether primary judge erred in the exercise of discretion to make property adjustment orders APPEAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – PARTICULAR CASES – REFUSAL OF ADJOURNMENT – where primary judge refused application for adjournment to obtain further valuation of real property – where further valuation sought to impugn value asserted by appellant herself – whether refusal to grant application unjust Property Law Act 1974 (Qld), s 264, s 265, s 266, s 272, s 274, s 277 SPD v DRH [2008] QSC 254, affirmed The Beach Retreat P/L & Anor v Mooloolaba Marina Ltd & Anor [2008] QCA 224, cited
COUNSEL:	The appellant appeared on her own behalf P W Hackett for the respondent
SOLICITORS:	The appellant appeared on her own behalf Evans & Company Family Lawyers for the respondent