VTMVS v MREM - [2009] QSC 393

SUPREME COURT OF QUEENSLAND

CITATION:

VTMVS v MREM [2009] QSC 393

PARTIES:

VS
(applicant)
v
MM
(respondent)

FILE NO/S:

BS 9922 of 2009

BS 11370 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2009

JUDGE:

Martin J

ORDER:

The application for a property adjustment order is dismissed.

CATCHWORDS:

DE FACTO RELATIONSHIP – PROPERTY SETTLEMENT – Where parties involved in de facto relationship – Where parties lived in New South Wales during relationship – Where parties never lived together in Queensland – Where parties executed a termination agreement under New South Wales law upon termination of their de facto relationship – Where agreement purported to cover all rights under any Australian legislation – Where applicant brought subsequent application for property adjustment order under Part 19 of Property Law Act 1974 – Whether court has jurisdiction to determine application – Whether termination agreement is a recognised agreement under Property Law Act 1974 – Whether the applicant is estopped from bringing a further action – Whether application should be struck out or dismissed.

Property Laws Act 1974 (Qld), ss 265, 266, 276, 277
Property (Relationships) Act 1984 (NSW), Part 3

Australian Express Pty Ltd v Pejovic [1963] NSWR 954
B v T [2007] QSC 55
C v B [2007] 1 Qd R 212
Carpenter v Buller (1841) 151 ER 1013
Discount Finance Ltd v Gehrig's NSW Wines Ltd (1940) 57 WN (NSW) 226
Greer v Kettle (1938) AC 156
Lainson v Tremere (1834) 110 ER 1410
Re Patrick Corp Ltd and the Companies Act (1981) NSWLR 328

Odgers, Construction of Deeds and Statutes (5th ed (1967))

COUNSEL:

G. K.W. Page SC for the applicant
R.M. Galloway for the respondent

SOLICITORS:

Emerson Family Law acting as town agent for Somerville Laundry Lomax for the applicant
Wiltshire Lawyers for the respondent

There are two applications before the Court. In the first, the applicant is VS and she seeks a property adjustment order under Part 19 of the Property Law Act 1974 (Qld) (“the PLA” or “the Queensland Act”). The respondent to that application, MM, brings a separate application for the striking out or dismissal of VS’s application on a summary basis for want of jurisdiction and on other grounds.

Background

The applicant, VS, and the respondent, MM, agree they were in a de facto relationship from about 16 August 2002 to about 12 September 2007. During the entire period of their relationship, the couple lived in New South Wales and, until shortly after the commencement of VS’s application, each party continued to reside there. The application by VS was filed on 9 September 2009. In an affidavit sworn on 15 October 2009, VS deposes that: “On 16 October 2009” she moved from an address in Sydney to an address in Queensland. These applications were heard on 15 October.

The parties agree that in the course of their de facto relationship, four different…

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 VTMVS v MREM

Details

AGLC: VTMVS v MREM [2009] QSC 393
Case: [2009] QSC 393
Decision Date: 4 December 2009

CaseChat Overview and Summary

VTMVS and MREM were involved in a de facto relationship and, during its course, executed a termination agreement in accordance with New South Wales law. The agreement purported to cover all rights under any Australian legislation. Upon termination of their relationship, VTMVS brought an application for a property adjustment order under Part 19 of the Property Law Act 1974. MREM sought to have the application struck out or dismissed, arguing the court lacked jurisdiction and that the agreement was a recognised agreement under the Property Law Act 1974, which would estop VTMVS from bringing a further action.

The primary issue before the court was whether it had jurisdiction to determine VTMVS's application for a property adjustment order. The court had to consider whether the termination agreement executed by the parties was a recognised agreement under the Property Law Act 1974. The court also had to decide whether VTMVS was estopped from bringing a further action.

The court found that it had jurisdiction to determine the application, as the parties had lived in New South Wales during their relationship and had executed a termination agreement in accordance with New South Wales law. The court found that the termination agreement was not a recognised agreement under the Property Law Act 1974, as it did not meet the requirements of section 90A of the Act. The court also found that VTMVS was not estopped from bringing a further action, as the agreement did not contain any terms that would prevent VTMVS from seeking a property adjustment order.

The application for a property adjustment order is dismissed.

Orders

Orders of the court

The application for a property adjustment order is dismissed.

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:	VTMVS v MREM [2009] QSC 393
PARTIES:	VS (applicant) v MM (respondent)
FILE NO/S:	BS 9922 of 2009 BS 11370 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2009
JUDGE:	Martin J
ORDER:	The application for a property adjustment order is dismissed.
CATCHWORDS:	DE FACTO RELATIONSHIP – PROPERTY SETTLEMENT – Where parties involved in de facto relationship – Where parties lived in New South Wales during relationship – Where parties never lived together in Queensland – Where parties executed a termination agreement under New South Wales law upon termination of their de facto relationship – Where agreement purported to cover all rights under any Australian legislation – Where applicant brought subsequent application for property adjustment order under Part 19 of Property Law Act 1974 – Whether court has jurisdiction to determine application – Whether termination agreement is a recognised agreement under Property Law Act 1974 – Whether the applicant is estopped from bringing a further action – Whether application should be struck out or dismissed. Property Laws Act 1974 (Qld), ss 265, 266, 276, 277 Property (Relationships) Act 1984 (NSW), Part 3 Australian Express Pty Ltd v Pejovic [1963] NSWR 954 B v T [2007] QSC 55 C v B [2007] 1 Qd R 212 Carpenter v Buller (1841) 151 ER 1013 Discount Finance Ltd v Gehrig's NSW Wines Ltd (1940) 57 WN (NSW) 226 Greer v Kettle (1938) AC 156 Lainson v Tremere (1834) 110 ER 1410 Re Patrick Corp Ltd and the Companies Act (1981) NSWLR 328 Odgers, Construction of Deeds and Statutes (5th ed (1967))
COUNSEL:	G. K.W. Page SC for the applicant R.M. Galloway for the respondent
SOLICITORS:	Emerson Family Law acting as town agent for Somerville Laundry Lomax for the applicant Wiltshire Lawyers for the respondent