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

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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

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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.

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

HIS HONOUR:

1. 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.

1. 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.

1. 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.

1. 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.

1. In the statement of claim in the primary action (no. 5385 of 2004) the plaintiff, Ms Stott, having pleaded that the two parties were registered joint proprietors of the property at 39 Banyon Street, pleaded that she desires the land to be sold and the proceeds to be distributed equally between them, and seeks an order that the property be sold and directions thereto, or alternatively an order for partition of the land.  By the defence in the primary action Mr Murphy admits that they are the registered joint proprietors of the land, denies the other allegations in the statement of claim and the relief sought;  and by counterclaim pleads the circumstance of the respective contributions to the purchase, the circumstance that he thereafter sustained the mortgage and seeks a declaration that the parties hold their interests in the property on trust for themselves in the proportions of 80 per cent to him and 20 per cent to her.  He seeks consequential Orders thereto pursuant to s.291.

1. It is unnecessary to dwell further upon the pleadings other than to say that the plaintiff asserts that she has made a substantial contribution beyond that admitted by the defendant and that the parties plainly have not resolved their differences as originally sought in their mutual correspondence.

1. The skeletal history of the relevant relationship is that in June 1994 the parties purchased in their joint names the relevant property, 39 Banyon Street.  They there lived together and then separated - in mid-1995 according to the plaintiff, Ms Stott and in early 1995 according to the defendant, Mr Murphy.  Thus it is apparent that the present application is some seven years out of time.  The writ, as I say, was filed on 7 April 2004 and the defence and counterclaim filed 17 May 2004.

1. The history of the matter relevant to the summons before me is set forth in the affidavits supporting the summons and opposing it.  Mr Murphy sets forth the contributions of the parties to the purchase of the property, some $75,000 by him and some $25,000 by Ms Stott.  The circumstances of the relationship according to Mr Murphy (but denied by Ms Stott) are set forth in paragraph 5 of his affidavit and do not need repetition.  Intervention Orders were obtained by both paries on 28 August 1995 in the local Magistrates’ Court.  Those Orders have not been dismissed or recanted.  Many years have passed since the plaintiff and the defendant ceased living together, she having left the property in 1995 with her daughter (not a daughter of the relationship).  Mr Murphy deposed in paragraph 7, “As the years passed I came to the belief that the plaintiff was not asserting an interest in the property”.

1. Ms Stott in her affidavit sworn 6 September 2004 disputes much of Mr Murphy’s affidavit.  In paragraph 4(d) she sets out the difficulties between the parties which again as with Mr Murphy’s affidavit paragraph 5, I do not need here to repeat.  She exhibits to her affidavit letters between the parties in October 2003 (undated) from Mr Murphy to her and hers in response until 8 January 2004 in relation to claims and possible settlement of the claims in relation to the property prior to the issuance of proceedings.

1. I turn to the summons before me. Paragraph 1 of the summons seeks leave pursuant to s.281(2)(b) to seek orders under Division 2 for adjustment of the parties’ property interests. Paragraph 2 seeks leave pursuant to s.282(2) to seek such orders out of time.

1. It was conceded by Dr Sadler for Ms Stott that there was a domestic relationship as contemplated by s.281(1) and that the defendant had made a substantial contribution as contemplated by s.281(2)(b)(1). However, in issue was the serious injustice criterion in s.281(2)(b) and the adequate compensation criterion in s.281(2)(b)(i).

1. Section 282, the threshold criterion as to time, is of course significantly in issue.

1. In my view the provision in s.282(2) is a meaningful provision requiring the application to be made “within two years after the date on which the relationship ended”. By sub-s.(2) is provided that the Court “may grant leave … to apply for an Order at any time after the end of the period if the court is satisfied” on the comparative hardship criterion there stated. It is plain from the terms of s.282 and 282(1) in particular that there is a time limit imposed by the provision. The policy underlying that provision is also apparent, namely that there be some certainty in people's lives so far as properly it may be achieved. The provision in s.282(2) that a Court “may” grant leave demonstrably is permissive and not mandatory. Further, it is plain that the provision is not exclusive: that is to say that while the Court may grant leave if the matter there set forth is satisfied, satisfaction of that matter is not conclusive of the discretion to grant leave.

1. With every respect I agreed with Warren J (as then she was) in McGibbon v. Marriott[1] that a reasonable explanation ought be provided before satisfaction of s.282 is met and with every respect I disagree with Gillard J in Harris v. Harris[2] who came to the opposite conclusion.  As I have previously said[3], the criterion is not a high one, given the complex of human relations and historical circumstances;  but in my view it is clear from the terms of the section, from policy and from general principle that where a time limit is laid down it is to be treated as meaningful.  Accordingly, I regard it as necessary as a matter of law that a reasonable explanation ought be provided by the applying party.

   [1](1999) VSC 381 at [7].

   [2]22 Fam.L.R. 263.

   [3]Lockett v Duckett & Anor (2004) VSC 377, at [20]-[21].

1. In this instance the time delay is very substantial, being nearly seven years.  Further, in my view no satisfactory explanation or excuse has been advanced by the applicant.  Plainly there was difficulty between the parties, which is not unusual.  But there is no suggestion in the affidavit material before me that Mr Murphy was in some position of impotence, oppression, disadvantage or inarticulateness which would explain or excuse such an extensive delay.  The existence of the Intervention Orders is no reason not to take proceedings, as indeed the letters between the parties before action demonstrate.

1. I consider that the applicant has provided no reasonable explanation for the seven year quantum out of time sufficient or at all to justify leave being granted under s.282(2).

1. Further, I am not satisfied that a failure to make an Order would result in serious injustice as contemplated by s.281(2)(b), and proceeding on the basis that it is a holistic requirement (per Renaud J and Street v. Bell[4]) I am not satisfied that the otherwise not adequate compensation criterion as provided by s.281(2)(b)(ii) likewise is met given the claims and counterclaims in the main action between the parties.

   [4](1993) 114 FLR 167 at 174-175.

1. However, the primary matter is the threshold matter of time.  In my view it is plain that the quantum by which the defendant is out of time, together with the lack of any good reason for the delay, together with (albeit to a significantly lesser extent) the difficulties which the plaintiff says that she has in relation to proof in paragraph 5 of her affidavit, all tend to the one end, namely that leave ought not be granted for the issuance at this late time of the relief sought under Division 2 of Part IX Property Law Act 1958. That of course leaves the claim of the defendant in his counterclaim otherwise on foot, but the pathway sought by this summons is not open to him.

1. Accordingly, I dismiss the summons.

1. Unless there are persuasive reasons to the contrary, I will make the usual order which is that the costs of the plaintiff who is the successful party on the summons and is the respondent to the summons be paid by the defendant, who is the applicant on the summons.