Wiltshire and Ford

[2017] FCCA 1313

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILTSHIRE & FORD [2017] FCCA 1313

Catchwords:
FAMILY LAW – Property – application for leave to institute proceedings pursuant to section 44(3) refused – restraint on bringing further proceedings pursuant to section 79 – considerable delay in bringing proceedings – applicant may have claim against solicitor in respect to delay – respondent solely contributing to mortgage, maintaining the property and renovations since separation – intermingling of respondent and new husband’s assets – direct and indirect contributions of the respondent’s parents.

Legislation:

Family Law Act 1975 (Cth), Part V

Cases cited:

Althaus & Althaus (1982) FLC 91–233

Brisbane South Regional Health Authority v Taylor [1996] HCA 25

Kennon & Kennon [1997] FamCA 27

McDonald and McDonald (1977) FLC 90–317

Robb & Robb (1995) FLC 92-555

Sharp & Sharp [2011] FamCAFC 150

Tamaniego & Tamaniego [2010] FamCAFC 254
Whitford & Whitford (1979) FLC 90–612

Applicant: MR WILTSHIRE

Respondent: MS FORD

File Number: NCC 3502 of 2016

Judgment of: Judge Middleton

Hearing date: 1 June 2017

Date of Last Submission: 1 June 2017

Delivered at: Newcastle

Delivered on: 29 June 2017

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: Byrnes Lawyers

Counsel for the Respondent: N/A

Solicitors for the Respondent: Coastal Law and Conveyancing

ORDERS

1. That the initiating application of Mr Wiltshire filed 21 December 2016 be dismissed.

2. That leave be refused to the applicant to institute these proceedings pursuant to section 44(3) of the Family Law Act 1975 (Cth).

3. That the applicant do all acts and things necessary at the applicant’s sole cost, to remove the caveat (AM17485) over the property situated at Property M, New South Wales being all of the land in folio identifier (omitted).

4. That the applicant be restrained from bringing any future proceedings against the respondent pursuant to section 79 the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment under the pseudonym Wiltshire & Ford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3502 of 2016

MR WILTSHIRE

Applicant

And

MS FORD

Respondent

REASONS FOR JUDGMENT

Introduction

1. The matter is before me by way of an interim hearing. The issue for determination is whether leave is granted for the applicant to bring the proceedings out of time pursuant to section 44(3), (4) and (6) of the Family Law Act 1975 (Cth).

Background

1. The parties married on (omitted) 2004, separated on 19 January 2012 and were divorced effective on 21 September 2013. The relationship spanned approximately sixteen and a half years. The parties agree that there was a separation of approximately sixteen months during that time.

2. The applicant filed his initiating application on 21 December 2016, some 3 years and 3 months after the divorce, and therefore 2 years and 3 months out of time.

Material

1. The applicant relies upon the following documents:

   a)Initiating application filed on 21 December 2016;

   b)Affidavit of Kevin Byrnes filed 21 December 2016;

   c)Affidavits of himself filed 21 December 2016 and 26 May 2016; and

   d)Financial statement filed on 21 December 2016.

2. The respondent relies upon the following documents:

   a)Response filed 16 February 2017;

   b)her affidavits filed 16 February 2017 and 22 May 2017; and

   c)Financial statement filed 16 February 2017.

Orders

1. The orders sought by the applicant husband are:

   1)The respondent is restrained from disposing of, transferring, dealing with encumbering the property at Property M (being the whole of the land contained in certificate of title folio identifier (omitted)) pending finalisation of these proceedings.

   2)That leave be granted to the applicant to bring these proceedings pursuant to section 44 (3) of the Family Law Act 1975 (Cth).

   3)That the applicant have leave to file an amended application for final orders on the respondent providing disclosure of financial affairs.

   4)Such further or other orders as the Court deems fit.

2. The respondent seeks the following orders:

   1)That leave be refused for the applicant to institute these proceedings pursuant to section 44 (through the Family Law Act 1975 (Cth)).

   2)That the initiating application of Mr Wiltshire filed 21 December 2016 be dismissed.

   3)The applicant do all acts and things necessary at the applicant's sole cost to remove the caveat ((omitted)) over the property situated at Property M, New South Wales being all of the land in folio identifier (omitted).

   4)That the applicant pay the respondent’s costs of and incidental to these proceedings on an indemnity basis.

   5)That the applicant be restrained from bringing any further proceedings against the respondent pursuant to section 79 the Family Law Act 1975 (Cth).

   6)That should the applicant be granted leave to institute these proceedings pursuant to section 44 (3) of the Family Law Act 1975 (Cth) that the respondent have leave to file an amended response for final orders.

The law

1. Section 44(3), (4) and (6) of the Family Law Act 1975 (Cth) are the relevant statutory provisions:

   “s 44(3) Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983 :

   (a)  a divorce order has taken effect; or

   (b)  a decree of nullity of marriage has been made;

   proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:

   (c)  in a case referred to in paragraph (a)--the date on which the divorce order took effect; or

(d)  in a case referred to in paragraph (b)--the date of the making of the decree.

The court may grant such leave at any time, even if the proceedings have already been instituted.

(3AA)  However, if such proceedings are instituted with the consent of both of the parties to the marriage, the court may dismiss the proceedings if it is satisfied that, because the consent was obtained by fraud, duress or unconscionable conduct, allowing the proceedings to continue would amount to a miscarriage of justice.

(3A)  Notwithstanding subsection (3), where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983 :

(a)  a divorce order has taken effect or a decree of nullity of marriage has been made; and

(b)  the approval under section 87 of a maintenance agreement between the parties to the marriage has been revoked;

proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted:

(c)  within the period of 12 months after:

(i)  the date on which the divorce order took effect or the date of the making of the decree of nullity, as the case may be; or

(ii)  the date on which the approval of the maintenance agreement was revoked;

whichever is the later; or

(d)  with the leave of the court in which the proceedings    are to be instituted;

and not otherwise.

(3B) Despite subsection (3), if, whether before or after the commencement of Schedule 2 to the Family Law Amendment Act 2000 :

(a)  a divorce order has taken effect or a decree of nullity of marriage has been made; and

(b)  a financial agreement between the parties to the marriage has been set aside under section 90K or found to be invalid under section 90KA;

proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted:

(c)  within the period of 12 months after the later of:

(i)  the date on which the divorce order took effect or the date of the making of the decree of nullity, as the case may be; or

(ii)  the date on which the financial agreement was set aside, or found to be invalid, as the case may be; or

(d)  with the leave of the court in which the proceedings are to be instituted;

and not otherwise.

s 44(4)  The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:

(a)  that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or

(b)  in the case of proceedings in relation to the maintenance of a party to a marriage--that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.

s 44(6)  The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:

(a)  hardship would be caused to the party or a child if leave were not granted; or

(b)  in the case of an application for an order for the maintenance of the party--the party's circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.”

1. In Sharp & Sharp[1] the Court considered the meaning of hardship in the context of section 44(3) and (4) of the Family Law Act 1975.

   [1] [2011] FamCAFC 150.

2. In a joint judgment of May and Ainslie-Wallace JJ their Honours said under the heading Relevant Law:

   “it is important to bear in mind the purpose of section 44 in the context of the Act, which is that time limits are to be observed as the wording of that section makes clear.”[2]

   [2] Ibid [12].

3. Their Honours said the principles concerning applications for leave to commence an action out of time are well known, citing Brisbane South Regional Health Authority v Taylor [1996] HCA 25 where McHugh J said:

   “… The enactment of time limitations has been driven by the general proposition that “where there is delay the whole quality of justice deteriorate.”

4. At 553 His Honour said:

   “a limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislator’s judgement that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.”

5. In Whitford & Whitford[3] the Full Court noted at 78,146 that while the section intends to confer power to grant leave to avoid hardship the:

   “power should be exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within a year from the decree nisi.”

   [3] (1979) FLC 90 – 612.

6. Section 44(4) provides the criteria by which I must be satisfied prior to exercising my discretion to grant leave pursuant to an application brought under section 44(3).

7. In accordance with section 44(4)(a) it must be established that hardship would be caused to the husband if leave were not granted. If hardship is established I must nevertheless be persuaded that the discretion should be exercised in favour of the husband to grant leave to allow the application.

8. At Para [18] the Full Court in Sharp & Sharp[4] said:

   “in assessing hardship in this context the well-established test is that the applicant must have a prima facie claim worth pursuing or a real probability of success. Further leave will not be granted if to do so would not in the substantive result alleviate that hardship.”

   [4] [2011] FamCAFC 150.

9. In Whitford & Whitford[5] the Court said:

   “as a general proposition it might be said that the inability of an applicant to pursue a claim which in the circumstances of the applicant or a child of the marriage is trifling, generally will not cause hardship. Similarly, where the costs which the applicant will have to bear himself or herself are about as much or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted.  But otherwise we find no warrant in either sections 44(3) and 44(4) for saying that the right or entitlement lost must be a substantial one.”

   [5] (1979) FLC 90 – 612.

10. At 78145 to 78146 the Full Court in Whitford & Whitford[6] continued:

    “such matters as the length of the delay, the reasons for the delay and prejudice occasioned to the respondent by reason of the delay and the strength on the merits of the applicant's case and the degree of hardship which would be suffered unless leave were granted are matters affecting the exercise of discretion.”

    [6] Ibid.

11. It is incumbent on me to attempt to assess the possible outcome of the husband’s substantive case if leave were to be granted and the likely costs of the substantive claim (McDonald and McDonald (1977) FLC 90–317).

12. As to the second stage of the exercise O’Ryan J in Tamaniego & Tamaniego [2010] FamCAFC 254 said:

    “in summary, in considering the second question the court may have regard to a number of factors that include whether the applicant has an adequate explanation for the delay in bringing the proceedings and whether to grant leave would prejudice or impose hardship on the respondent to the application for leave or other persons .”

13. In Althaus & Althaus (1982) FLC 91–233 Evatt CJ said:

    “it requires the court to consider whether the wife took all reasonable steps to pursue her claim or whether, on the other hand, she acted at any time as if she had no intention of proceeding or pursuing any claim at all against the husband. It requires the court to consider whether it can reach conclusions as to why the proceedings were started beyond the time lodged and whether those proceedings are attributable to default on the part of the applicant.”

14. At [97] in Sharp & Sharp[7] the Full Court said:

    “merely because the respondent… does not point to particular prejudice that might arise if leave were granted, does not dispose of the question. The law presumes prejudice to flow to a person sought to be joined in litigation after the effluxion of the relevant time limits.”

    [7] [2011] FamCAFC 150.

15. It therefore follows, from those authorities in my view, that I must consider and determine the following matters:

    1)whether hardship would be caused to the husband if leave were not granted;

    2)whether, if hardship is established, I am persuaded that the discretion should be exercised;

    3)whether the husband has a prima facie case or a real probability of success;

    4)whether the costs of litigation will be as much or more than the husband is likely to be awarded;

    5)what is the length of delay;

    6)what were the reasons for the delay;

    7)what is the prejudice to the respondent due to the delay;

    8)assess the probable outcome of the husband substantive claim;

    9)whether the husband took all reasonable steps to pursue his claim;

    10)whether there is any evidence to suggest that the applicant at some stage abandoned his case.

The evidence

1. The husband’s solicitor provides evidence that the husband first saw a solicitor at his office in August 2014. The solicitor said that he was away from his office and a locum was seeing his client at the time.

2. The solicitor says that when he returned he reviewed the notes taken by Mr Reynolds (the locum) and they did not make reference to the fact that the husband had been divorced on 21 September 2013 or at all.  Those notes are not before the court.

3. The solicitor provides further evidence that the husband did not have any contact details for the wife and that this caused further delay.

4. The solicitor says he first became aware on 26 April 2016 that the husband had been divorced.  He says he then realised that leave would need to be granted to bring the application out of time. The application was filed some 8 months later.

5. The husband provides 2 affidavits.  He confirms that he saw a locum in August 2014 at his solicitor’s office.

6. The husband says the relationship was a period of 17 years and that there is only one asset being the property at Property M which is in the wife's name.

7. The husband says he didn't want to do anything about the property settlement until X (the child from the relationship) finished school so as to avoid further disruption to him.  X, at the time of separation was in year 11.

8. The husband says after X left school the wife moved away from the area and he lost touch with her and his son X refused to give him the wife's address.

9. The husband says the property at Property M is valued at between $480,000 and $520,000. The wife’s financial statement says there is a mortgage to the value of $184,725.

10. The wife says the property is worth $320,000, the same figure the husband first suggested in his earlier affidavit.

11. On the wife's figures the property has a net worth of $135, 275. On the husband’s figures the property has a net worth of between $295, 275 and $335, 275.

12. The husband says at the time of cohabitation he was on a Centrelink benefit. He disputes that the wife had assets with the value she attributes them.

13. The husband said his money was spent on food and day-to-day living expenses whilst the wife’s income was for rent and later the mortgage.

14. The husband says the wife earned limited income during the first 11 years of the relationship.

15. The husband acknowledges that there was a period of approximately 16 months between early 1999 to mid-2000 when the parties separated.

16. The husband says he cared for two children from the wife's previous relationship, noting that the children were 11 and 13 at the commencement of cohabitation.

17. The husband says he worked on a more regular basis from approximately the year 2000.

18. The husband says until that time he shared the care of X with the mother. The husband says the wife did not commence working on a permanent part-time basis until 2008, the wife says that this occurred in 2006.

19. The husband says that he operated a business known as ‘(omitted)’ from 2006. The wife assisted him in the business.

20. The parties moved in to live with the wife's parents at Property M (the subject property) in 2005. They lived there rent-free.

21. In 2008 the home was sold to the wife.  The parties dispute as to how the property came to be in the wife's name.

22. The wife says that the sale was conditional on it having nothing to do with the husband.

23. The husband says that the parties agreed to transfer the home into the wife's name because of the husband's poor credit rating.

24. The home was purchased for $220,000.

25. In 2010 the parties agree that renovations were undertaken on the property. They are in dispute as to how the husband contributed to those renovations.

26. The husband says he made considerable contributions by way of assisting the builders. The wife says he made minimal contributions.

27. The evidence establishes that the renovations were financed through the wife obtaining credit cards, personal loans and refinancing the mortgage. It is an accepted fact that the husband could not obtain credit at all including initially for the purchase of the property.

1. It is the husband's case that the tradespeople who performed the renovation work were friends of his and as a result reduced their invoices considerably.  The wife does not agree with that contention.

2. The husband says that after he and the wife moved in to live with the wife's father he provided considerable care for the father. The husband says that despite the father receiving personal paid care he was required to do a considerable amount of assistance for the father.

3. The husband concedes that since separation, 19 January 2012, the wife has been responsible for the maintenance, upkeep of the home and payment of the mortgage entirely.

4. That is, the wife has been responsible for the property for in excess of five years post separation.

5. The evidence establishes that it was through the wife's self-improvement that she was able to obtain suitable work such that she could apply for and obtain credit to purchase the home.

6. The evidence establishes that the home was shared by the parties for approximately four years of their relationship.

7. Further the wife gives evidence that since purchasing the Property M property she has made the following payments:

   a)mortgage repayments totalling $153,506;

   b)insurance premiums totalling $15,056;

   c)council rates totalling in excess of $16,000.

8. The wife gives evidence that since November 2016 she has made an additional $9,500 in payments towards further renovation costs for the property.

9. The wife gives evidence that since December 2015 her current husband has been assisting in making home loan payments on the Property M property.

10. The wife says that the husband throughout the relationship worked sporadically, generally for cash, and that he spent a lot of his time away from the home spearfishing, visiting friends, drinking and smoking cannabis.

11. It is the wife's case that the husband did not have a driver's licence in 2006 when the business known as (business omitted) commenced operation.  The wife says the husband’s evidence that he drove her father around often after they moved in with him is a fabrication because he simply did not have a licence.

12. It is the wife's case that she did the bulk of the household duties including cleaning, cooking, washing and household maintenance.

13. The wife also complains that her contributions were made more arduous due to the family violence perpetrated upon her through the husband's continual verbal abuse of her throughout the relationship.

14. It is the wife's case that separation occurred after the husband took the only means of transport, noting without a licence, from the property.

15. The wife reported the vehicle was stolen and it was later recovered in the (omitted) area.

16. The wife says the husband contacted her a short time later and told her that he was moving to Sydney to live with his friends. The parties did in fact remain separated from approximately 16 months.

17. It is the wife's case that when the parties resumed their cohabitation in 2001, the husband had no assets and an unpaid fine which meant that he could not obtain a driver's licence. The wife says the husband had no money and could therefore not contribute to household expenses.

18. The wife says that the child of the relationship was put through private schooling and that she met all of the school fees without any assistance from the husband.

19. The wife confirms that she and the husband lived with her parents in their home rent-free for approximately 4 years prior to the property being transferred into her name.

20. It is the wife's case that the transfer of the property was discussed with the husband and that she advised him that the property would be transferred into her name solely and that she would never sell it and ultimately the home would go to her children upon her death.  The wife says that the husband indicated that he could not care less about the property.

21. The wife says that the property was purchased for approximately $220,000. She gives evidence that approximately $60,000 was spent on renovations, all of which was obtained through her ability to obtain finance.

22. It is the wife's case that the property increased in value to $280,000 at the time of separation and that after taking into account the mortgage and the other liabilities as a result of renovations to the home the net assets were approximately $14,000.

23. It is the wife's case that she has continually been paying the debt relating to credit cards and personal loans for the renovations since separation without any assistance from the husband.

24. The wife gives evidence that on 23 December 2015 she and her current husband purchased a property at Property B, using the equity she had in the Property M property as security for the purchase.

25. The wife says that she and her current husband have intermingled their finances since living together. It is from a joint account that she and her current husband meet the mortgage on the Property M property. The wife says that her current husband applied his own funds to pay for renovation costs for the Property M property.

26. It is the wife's case that she believed the husband had abandoned his claim notwithstanding she conceded that she was contacted on or about October 2014 by the applicant husband's current lawyer.

Submissions

1. The applicant submits that I must consider the applicant's case at its highest as this is what is meant in the authorities by prima facie case.

2. The applicant submits that the renovations took the property from a two-bedroom home to a five bedroom home.

3. The applicant submits that at its highest the contributions he sets out would bring about an alteration of the property. 

4. The applicant submits that the respondent cannot rely upon the liability of $50,000 on the credit cards because they had been paid off at the time of separation. That submission is flawed because the credit cards were paid off by increasing the mortgage which the respondent has been solely responsible for since separation.

5. The applicant concedes that the wife has been solely responsible for meeting the mortgage payments and maintaining the property since separation.

6. The applicant submits that there will be prejudice to the applicant if the claim is not allowed.

7. With respect to delay the applicant concedes that he may in fact have a claim against his lawyer.

8. In relation to prejudice to the respondent, the applicant says that the property is still intact and the respondent was on notice in 2014 but failed to provide an address and therefore cannot claim any prejudice.

9. The applicant submits that his costs would be between $15,000 and $20,000 from start to finish if the matter went to trial.

10. The wife submits that limitation periods are not arbitrarily raised.

11. It is submitted on behalf of the respondent that even if I found that there was some prejudice to the applicant that I would not thereafter use my discretion to allow the applicant to commence out of time. 

12. The respondent submits that her contributions far exceeded the husband's to the extent that it makes the husband's contributions inconsequential particularly having regard to the post separation contributions made by her.

13. The wife points out that it was her efforts alone that enabled her to obtain a loan to both purchase the property and then finance the improvements.  The wife submits that the husband made no efforts to improve his financial circumstances throughout the relationship.

14. The wife submits that the husband could not have contributed to her superannuation having regard to the amount of superannuation and the length of time that the parties were together when she was earning superannuation.

15. The wife submits that I should take into account the fact that the parties paid no rent for a period of 4 years, that there was a reduction in the purchase price, that the respondent's father also contributed to the renovations and that the respondent's current partner has made contributions to the property since 2015.

16. The wife submits that the husband only assisted the tradies, he did not do any substantial work, that during the 16 month separation he provided no care for the child of the relationship.

17. With regards to the applicant's Robb & Robb[8] claim the wife submits that it should be noted that one of her children left the shared home 2 years after cohabitation and the other child lived 6 months with her father and 6 months with the parties.

    [8] (1995) FLC 92-555.

18. The wife submits that it was a further contribution she made to the welfare of the family due to the applicant husband's lack of licence from 1989 to 2008.  That is, she was required to transport the applicant husband throughout those years.

19. The respondent submits that the evidence would not satisfy me that it is just and equitable to adjust the ownership of the property.

20. In relation to the delay, the wife submits that the husband was served with the divorce and that he should have read the order. He did not.

21. Furthermore the wife submits that I should note that there is no evidence from Mr Reynolds (the locum) corroborating the evidence of Mr Byrnes and that one would have thought those notes were important.

22. The wife submits that the husband first saw a lawyer in August 2014 and it was not until 2 years and 4 months thereafter that an application was filed.

23. The wife submits it is not for the court to remedy any fault of the applicant's lawyer.

24. With regards to the alleged failure of the respondent to provide her address, the respondent submits that this is nonsense, that there was no conversation between her and the applicant or his lawyer between October 2014 until January 2017 and nevertheless the wife was served personally. 

25. There is no evidence as to how the applicant came to be aware of the wife's address.  For those reasons I should not take into account the alleged failure of the wife to provide her address.

26. The wife further submits that it was reasonable for her to consider that the husband had abandoned his claim as she heard nothing from him or his lawyer for some 2 years and 4 months after the first contact.

27. With respect to prejudice to the respondent she submits that Sharp & Sharp[9] is authority for the proposition that prejudice is automatically assumed.

    [9] [2011] FamCAFC 150.

28. The respondent submits she has paid approximately $10,000 so far in legal fees.  The respondent submits that her costs will be greater than those suggested by the applicant particularly having regard to the fact that there will be difficulty in obtaining necessary records having regard to the length of time that has passed and the fact that the respondent will run a Kennon & Kennon[10] argument at trial which will cause the trial to run longer than otherwise.

    [10] Kennon & Kennon [1997] FamCA 27.

29. The respondent submits that the influx of time will cause some difficulty in properly defending the proceedings. The respondent submits that her financial statement is evidence of the fact that she cannot afford litigation.

30. The respondent submits that there has been an intermingling of funds between herself and her current husband, that he has paid for further improvements to the Property M property and that this will mean that he may be joined as a third party, again creating more costs and lengthening the proceedings.

31. The respondent says that overall the costs of the litigation for the applicant will eat up the whole amount of any adjustment if one were made.

Assessment

1. The evidence establishes that there has been considerable delay.

2. Between January 2012 and January 2017, when the respondent was served, some five years has passed.

3. Three years and three months had passed between the party’s divorce and the time of filing.

4. From the time the applicant first saw a lawyer in August 2014 until the filing of his application in December 2016, 2 years and 4 months had passed. On any view that is a considerable delay.

5. As to the reasons for that delay the evidence establishes that the husband did not want to take any action until his son had finished school, that child being in year 11 when the parties separated. That child finished school in 2013. The husband took no steps to commence proceedings at that time.

6. The husband says that thereafter he could not commence proceedings because he did not know where the wife was living.

7. I do not accept that evidence. The respondent was contacted in 2014.  The next contact the applicant had with the respondent, based on the evidence before me, is when the respondent was personally served with the applicant's application. 

8. No evidence is provided as to how the applicant became aware of the respondent’s address. I am not satisfied that the applicant did not know the respondents address at all times.

9. I am not satisfied that the husband took all reasonable steps to pursue his claim.  The length of delay in and of itself represents a very casual approach to this litigation.

10. I am satisfied that there is some evidence to suggest that the applicant at some stage abandoned his case. 

11. The wife says he was fully aware that he had no claim to the property since the time the property was transferred into her name.

12. The husband says that he knew it had to be transferred into her name because his credit rating was no good. The husband then took no steps to make a claim on the property until at least 2 years and 10 months after separation.

13. That attempt was in my view very much a half-hearted attempt. The husband then takes no further steps it seems until filing his application in December 2016, some 2 years 4 months after his initial contact with the respondent. 

14. In those circumstances it is reasonable for the respondent to consider that the applicant abandoned his case.

15. As to whether there is hardship caused to the applicant if the claim is not permitted I note that in assessing hardship I must find that the applicant has a prima facie claim worth pursuing.

16. This case is significantly impacted upon due to a number of factors namely:

    a)the length of delay;

    b)the financial and non-financial contribution arguments by both parties; and

    c)the intermingling of funds in relation to the subject property for some considerable period of time.

17. In effect there will be three people involved in the litigation. The property does not represent a substantial asset. 

18. Having regard to the significant period of time post separation that the respondent has been responsible for the maintenance, further renovations and payment of mortgage, the fact that the evidence, I believe, is most likely to establish that the respondent was the primary income earner, and the indirect contributions and direct contributions made by the respondent’s parents, leads in my view to a very limited claim for the applicant.

19. The solicitor for the applicant has estimated his costs in relation to the further proceedings quite conservatively in my view. 

20. I say this particularly having regard to the difficulty that delay will bring in obtaining necessary evidence, the fact that the respondent's partner will no doubt be joined; and the fact that the respondent says she will bring a Kennon type claim to the proceedings.

21. The solicitor for the applicant conceded that the applicant may have a claim against his firm due to the matters he sets out in his affidavit.

22. I am concerned that the costs of litigation might well be as much or in fact more than the applicant might be likely to be awarded doing the best that I can to assess the possible outcome of the husband's substantive case if leave would be granted.

23. The degree of the hardship suffered by the applicant may indeed be ameliorated should he have a successful claim against his solicitor.

24. Whilst I accept that there may be some minimal hardship to the applicant, I am not persuaded for the reasons I have set out that I should exercise my discretion and allow the applicant to commence proceedings out of time.

25. Accordingly I make the following orders.

I certify that the preceding one-hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date:  29 June 2017