TD v GP - [2006] QDC 367

DISTRICT COURT OF QUEENSLAND

CITATION:

TD v GP [2006] QDC 367

PARTIES:

TD
Plaintiff

V

GP
Defendant

FILE NO/S:

3574 of 2005

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

11 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

23 – 25 and 28 August 2006

JUDGE:

Ryrie DCJ

ORDER:

1.   The plaintiff’s claim is dismissed in respect of the relief sought pursuant to the Property Law Act 1974.

2.   The plaintiff’s claim be allowed in respect of the alternative relief for breach of the deed dated 9^th August 1999

3.   A declaration that the defendant holds on trust for the plaintiff the sum of $4686.94 together with interest calculated at 9% from 12th November 1999 for a further sum of $2919.03

4.   The defendant’s counter claim be allowed in the sum of $4125.00 together with interest of 9% from 26^th October 2002 for a further sum of $1471.78.

CATCHWORDS:

PROPERTY LAW – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – whether parties resided together in a de facto relationship for the purpose of Part 19 Property Law Act 1974

PROPERTY LAW – DEED – whether deed was breached by the defendant – whether plaintiff entitled to recover – financial contributions

Property Law Act 1974 (Qld) Part 19

Acts Interpretation Act 1954 (Qld) s 32DA

COUNSEL:

Mr G Waterman for the plaintiff

Mr P Hackett for the defendant

SOLICITORS:

Mullins Lawyers for the plaintiff

Hirst & Co for the defendant

Background

The plaintiff and the defendant were born 7^th April 1980 and 2^nd December 1946 respectively.

The parties first met each other at work in 1990 in Brisbane. They worked for the same company at that time.

A sexual relationship subsequently commenced between the parties in December 1993. That relationship continued until at least January 2003.

The parties however were not each others exclusive sexual partners during that time. The defendant was already in a relationship with another woman since 1988 until late 1997/early 1998. The parties also engaged in sexual relations with others.

The parties did not reside together in the same residence on a full time basis during the period December 1993 to January 2002. The defendant only then returned to Brisbane to reside full time.

The parties did however spend a night or nights or a weekend together whether it be in Brisbane or Sydney during that period. They holidayed together at Christmas, Easter or on some weekends. The parties also holidayed apart. They remained in contact with each other through regular communication however when they were not together.

The defendant had been living and working in Sydney prior to January 2002. He had worked in Sydney during the period May 1995 to May 1997 at which time he returned to Brisbane to work and live. He had however lived most of the time in Sydney during that period.

He subsequently returned to Brisbane to work and live in May 1997until he again returned to Sydney to work and…

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 TD v GP

Details

AGLC: TD v GP [2006] QDC 367
Case: [2006] QDC 367
Decision Date: 11 October 2006

CaseChat Overview and Summary

In the case of TD v GP, the plaintiff sought relief under the Property Law Act 1974 on the basis of a de facto relationship with the defendant. The central dispute was whether the parties had resided together in a de facto relationship for the statutory period, which would entitle the plaintiff to an adjustment of the property interests under the Act. The court was also required to determine whether the defendant had breached a deed executed between the parties and, if so, what relief the plaintiff was entitled to.

The court had to consider several legal issues, primarily whether the plaintiff and the defendant had indeed been in a de facto relationship for the requisite duration as defined by the Property Law Act 1974. Additionally, the court needed to examine the terms of the deed to ascertain whether the defendant had breached it, and if so, what the appropriate remedy would be for the plaintiff. The court was also required to consider the defendant’s counterclaim, assessing whether the plaintiff had an obligation to compensate the defendant for any alleged breach of the deed.

The court found that the parties had not resided together in a de facto relationship for the statutory period under the Property Law Act 1974. Consequently, the plaintiff’s claim for adjustment of property interests was dismissed. However, the court held that the defendant had breached the terms of the deed dated 9th August 1999. As a result, the plaintiff was entitled to recover financial contributions made under the deed. The court ordered that the defendant hold the sum of $4686.94 on trust for the plaintiff, with interest at 9% from 12th November 1999, totaling an additional $2919.03. Furthermore, the court allowed the defendant’s counterclaim, ordering the plaintiff to pay the defendant $4125.00, with interest at 9% from 26th October 2002, totaling an additional $1471.78.

Orders

Orders of the court

1. The plaintiff’s claim is dismissed in respect of the relief sought pursuant to the Property Law Act 1974.

2. The plaintiff’s claim be allowed in respect of the alternative relief for breach of the deed dated 9th August 1999

3. A declaration that the defendant holds on trust for the plaintiff the sum of $4686.94 together with interest calculated at 9% from 12th November 1999 for a further sum of $2919.03

4. The defendant’s counter claim be allowed in the sum of $4125.00 together with interest of 9% from 26th October 2002 for a further sum of $1471.78.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	TD v GP [2006] QDC 367
PARTIES:	TD Plaintiff V GP Defendant
FILE NO/S:	3574 of 2005
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	11 October 2006
DELIVERED AT:	Brisbane
HEARING DATE:	23 – 25 and 28 August 2006
JUDGE:	Ryrie DCJ
ORDER:	*1. The plaintiff’s claim is dismissed in respect of the relief sought pursuant to the Property Law Act 1974.* 2. The plaintiff’s claim be allowed in respect of the alternative relief for breach of the deed dated 9^th August 1999 3. A declaration that the defendant holds on trust for the plaintiff the sum of $4686.94 together with interest calculated at 9% from 12th November 1999 for a further sum of $2919.03 4. The defendant’s counter claim be allowed in the sum of $4125.00 together with interest of 9% from 26^th October 2002 for a further sum of $1471.78.
CATCHWORDS:	PROPERTY LAW – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – whether parties resided together in a de facto relationship for the purpose of Part 19 Property Law Act 1974 PROPERTY LAW – DEED – whether deed was breached by the defendant – whether plaintiff entitled to recover – financial contributions Property Law Act 1974 (Qld) Part 19 Acts Interpretation Act 1954 (Qld) s 32DA
COUNSEL:	Mr G Waterman for the plaintiff Mr P Hackett for the defendant
SOLICITORS:	Mullins Lawyers for the plaintiff Hirst & Co for the defendant