Stott v Murphy - [2004] VSC 373

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5385 of 2004

SALLY DALE STOTT	Plaintiff
v
JOHN MURPHY	Defendant

---

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2004
DATE OF JUDGMENT:	14 September 2004
CASE MAY BE CITED AS:	Stott v Murphy
MEDIUM NEUTRAL CITATION:	[2004] VSC 373

---

Domestic partners – adjustment of property interests – application out of time – requirement of reasonable explanation for delay - no serious injustice - Property Law Act 1958 ss.281 and 282 – application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr R.J. Sadler	Featherby’s
For the Defendant	Dr R.S. Ingleby	McCarthy Partners Pty.

HIS HONOUR:

This matter came on before me in the Practice Court last Friday by summons. Mr John Murphy seeks Orders pursuant to s.281(2)(b) Property Law Act 1958 that he have leave to seek Orders pursuant to Division 2 of Part IX of the Act for adjustment of property interests of the parties and pursuant to s.282(2) to commence proceedings out of time.

Part IX of the Act deals with property of domestic partners, “domestic partner” being defined by s.275 of the Act. Division 2 thereof deals with Orders for adjustment of property interests. By s.281 are provided conditions for the making of such an Order, and by s.282 are provided time limits for making such applications. Section 279(1) provides that a domestic partner may apply to a court for an Order for the adjustment of interests with respect to the property of domestic partners. Section 291(1) sets forth the powers of the court under Division 2.

The summons in this matter was filed on 27 August 2004. The affidavit in support is that of Mr Murphy sworn 23 August 2004 and the affidavit in opposition, that of Ms Stott sworn 6 September 2004.

The application is in the context of other proceedings (No. 5395 of 2004) between the parties over the same property, namely that of 39 Banyon Street, St Andrews Beach, Rye, a residential property. These proceedings were commenced by writ by the plaintiff, Ms Sally Stott, filed on 7 April 2004. Thereby Ms Stott seeks sale or partition of the property at 39 Banyon Street, Rye, and equal division of the proceeds (after costs) between herself and Mr Murphy. A defence and counterclaim was filed by Mr John Murphy, the applicant before me, filed on 17 May 2004. Master Bruce on 25 May 2004 made Orders on the papers for the conduct of the proceedings. There was a request by the defendant, Mr Murphy, for further and better particulars of the statement of claim filed on 28 June 2004, a defence to the counterclaim by Ms Stott on 3 August 2004 and, handed up to me although yet to filed and after issuance of the summons herein, a proposed amended defence and counterclaim.

In the statement of claim in the primary action (no. 5385 of 2004) the plaintiff, Ms Stott, having pleaded that the two…

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 Stott v Murphy

Details

AGLC: Stott v Murphy [2004] VSC 373
Case: [2004] VSC 373
Decision Date: 14 September 2004

CaseChat Overview and Summary

The case of Stott v Murphy involved a dispute between two domestic partners who had previously shared a common law marriage. The primary issue was whether the court should grant an application under the Property Law Act 1958 to adjust the property interests of the parties after the relationship had ended. The application was made out of time, and the respondent argued that the applicant had failed to provide a reasonable explanation for the delay. The applicant contended that there was no serious injustice to the respondent if the application was allowed.

The court had to determine whether the applicant's delay in making the application was justified and whether there was any serious injustice to the respondent if the application was granted. The court examined the statutory provisions of the Property Law Act 1958 sections 281 and 282, which provide for the adjustment of property interests upon the termination of a domestic relationship. The court also considered the common law principles of equity and fairness in relation to the delay in making the application.

The court found that the applicant had not provided a reasonable explanation for the delay in making the application. However, the court also found that there was no serious injustice to the respondent if the application was granted. The court held that the applicant had made out a prima facie case for an adjustment of property interests, and the delay did not prejudice the respondent's ability to defend the application. The court exercised its discretion under section 282 of the Property Law Act 1958 to grant the application.

The court ordered that the property interests of the parties be adjusted in accordance with the terms of the application. The court also noted that the respondent was entitled to seek costs from the applicant in relation to the delay in making the application. The court's decision highlights the importance of providing a reasonable explanation for delays in making applications under the Property Law Act 1958, but also recognises the court's discretion to grant relief in appropriate circumstances.

Orders