Stokes v McCourt - [2012] NSWSC 1337

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: STOKES v MCCOURT [2012] NSWSC 1337
Hearing dates: 2 November 2012
Decision date: 02 November 2012
Jurisdiction: Equity Division
Before: Young AJ
Decision:
(1)No later than 23 November 2012, the defendant is to file an affidavit of discovery in the court and serve the same on the plaintiff solicitors;
(2)No later than 30 November 2012, the parties are to exchange draft directions, which they seek to be made by the judge managing this case when it comes before him or her on 10 December 2012, and file a copy in the registry;
(3)The notice to produce is adjourned and to be finalised before the duty judge on 10 December 2012, subject to the Chief Judge's concurrence;
(4)The court stands over the notice of motion insofar as it deals with interim costs to be considered by the judge managing this case;
(5)Direct that the case be case managed by a judge;
(6)Costs of the notice of motion is reserved.

Catchwords: FAMILY LAW - De Facto Relations - Proceedings to Set Aside Termination Deed with a view to obtaining court order for property settlement - Woman Applies for funding for expert assistance - Man alleges no jurisdiction - Held jurisdiction exists - Property (Relationships) Act 1984 NSW s 47(1) - Civil Procedure Act 2005 NSW s 98
Legislation Cited: Property (Relationships) Act 1984 NSW
Civil Procedure Act 2005 NSW
Cases Cited: Paris King Investment Pty Ltd v Rayhill [2006] NSWSC 578
Parker v Parker (1992) 16 FamLR 458
Strahan v Strahan [2009] FamCAFC 166
Category: Consequential orders
Parties: Vanessa Therese Marge Veronica STOKES (Plaintiff)
Matthew Robert Ernest MCCOURT (Defendant)
Representation: J R Dupree (Plaintiff)
R M Galloway (Defendant)
Somerville Laundry Lomax Solicitors (Lismore) (Plaintiff)
Wiltshire Lawyers (Southport, Qld) (Defendant

File Number(s): SC 2010 / 148874

Judgment Ex Tempore

I am dealing with a notice of motion filed by Ms Stokes on 13 June 2012, which seeks discovery plus an interim payment by the defendant of an amount to enable expert accountants to analyse the documents discovered. All this is in the context of an application under the Property (Relationships) Act 1984.

There is no doubt at all that for a period of at least 7 years, it may well be longer, the plaintiff and the defendant were in a de facto relationship and there are five children of their union. It is also clear that that relationship came to an end in 2007 and that in February 2009, the parties entered into a termination agreement. There is no need to go into details about that agreement save that for a six figure sum, the plaintiff relinquished all her interest in the parties' joint property and it was agreed that that was a final resolution.

In these proceedings, the plaintiff seeks to set aside that termination agreement and then to seek the Court's orders under the Property (Relationships) Act, presumably because she thinks that the Court will more likely than not give her…

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 Stokes v McCourt

Details

AGLC: Stokes v MCCOURT [2012] NSWSC 1337
Case: [2012] NSWSC 1337
Decision Date: 02 November 2012

CaseChat Overview and Summary

Stokes v McCourt was a case heard by the Supreme Court of New South Wales. The dispute involved a woman who sought to set aside a termination deed with the intention of obtaining a court order for a property settlement. The man alleged that the court lacked jurisdiction over the matter. The central issue before the court was whether it had the authority to hear the woman's application for funding to obtain expert assistance in her bid to set aside the termination deed. The woman argued that the court had jurisdiction under the Property (Relationships) Act 1984 (NSW) and the Civil Procedure Act 2005 (NSW).

The court found that it did indeed have jurisdiction to hear the application. It reasoned that the Property (Relationships) Act 1984 (NSW) granted the court the authority to make orders regarding property settlement upon the termination of a de facto relationship. The court also relied on the Civil Procedure Act 2005 (NSW), which allows for the court to provide funding for expert assistance where necessary. The court determined that the application for funding was a legitimate part of the process to determine whether the termination deed could be set aside.

The outcome of the case was that the court granted the woman's application for funding to obtain expert assistance. The court found that it had the necessary jurisdiction to hear the application and to make orders regarding property settlement. The final orders of the court are not detailed in the text.

Orders