ABA v Lad and Clout

[2011] QDC 280

DISTRICT COURT OF QUEENSLAND

CITATION:

ABA v LAD & Clout  [2011] QDC 280

PARTIES:

ABA
(Applicant)
v
LAD
(First Respondent)
and
CLOUT, David Lewis
(Second Respondent)

FILE NO:

DIS 18/06

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Ipswich

DELIVERED ON:

November 30, 2011

DELIVERED AT:

Ipswich

HEARING DATE:

November 25, 2011

JUDGE:

Koppenol DCJ

ORDER:

Application dismissed, with costs

CATCHWORDS:

PROPERTY LAW  where application made for orders pursuant to Property Law Act 1974, s 286  whether de facto relationship existed  whether applicant substantially contributed to property or financial resources  whether failure to make order would result in serious injustice

TRUSTS LAW  whether share of the property is held on resulting or constructive trust for the applicant

Property Law Act 1974, ss 286, 287(c), 291-2

MW v Director-General, Department of Community Services (2008) 82 ALJR 629, applied

X v Y [2010] NZHC 287, followed

COUNSEL:

M Hickey for the Applicant
First Respondent appeared on her own behalf
C Jennings for the Second Respondent

SOLICITORS:

Dale & Fallu for the Applicant

First Respondent appeared on her own behalf
Russells for the Second Respondent

1. ABA and LAD lived together in Ms LAD’s rented house at Minden from about May 2004 to November 2005. During that time, Ms LAD bought an adjoining block of land and had a house built on it. Mr ABA was a handyman. He helped the builders and tradesmen and contributed financially to aspects of the house build. He also did work around the yard and paid for many of the household expenses. The new house was later sold after Ms LAD went bankrupt.

1. Mr ABA says that he and Ms LAD actually lived in a de facto relationship. He claims a one-quarter share of the sale proceeds of the house. That share ($82,500) is held by the trustee in bankruptcy, Mr Clout. Mr ABA’s claim is brought under (a) section 286 of the Property Law Act 1974 and (b) aspects of trust law.

1. The Property Law Act claim: Under section 286, the court may make a property adjustment order concerning the property of de facto partners. However, it can only do that where the de facto relationship lasted less than 2 years—as here, if (sections 287(c), 291-2) Mr ABA substantially contributed to Ms LAD’s property or financial resources or family welfare and if failure to make the order would result in “serious injustice” to Mr ABA.

1. Ms LAD disputed in court that she and Mr ABA lived in a de facto relationship. However, she previously swore on oath in an affidavit prepared by her solicitors (a firm specialising in family and related law) that in fact she did. The parties’ “common intention” as to the nature of their relationship is regarded as determinative: MW v Director-General, Department of Community Services (2008) 82 ALJR 629, 635 [13]. Ms LAD also disputed the extent of Mr ABA’s financial and non-financial contributions. Mr ABA’s evidence was that his financial contributions to the building costs and landscaping totalled $19,182.20 and his non-financial contributions (based on his handyman charge-out rates) totalled $22,200. I found Ms LAD to be an argumentative and unimpressive witness and Mr ABA to be an impressive one who was fair and measured in his evidence. Where they conflict, I prefer Mr ABA’s evidence to that of Ms LAD.

1. I find that despite the parties’ occasional brief separations, Ms LAD and Mr ABA lived in a de facto relationship for 18 months from about May 2004 to November 2005, during which time he substantially contributed to her property or financial resources or their family welfare.

1. The remaining question for present purposes is whether failure to make the order sought by Mr ABA would result in “serious injustice” to him. Self-evidently, any injustice in this context must be a “serious” one before the court could intervene.

1. Counsel for Mr ABA submitted that “serious injustice” would result if Mr ABA’s financial and other contributions to Ms LAD went unrecognised. No other grounds (such as financial difficulties) were relied upon. If Mr ABA’s argument were intended to invite a finding of serious injustice as a matter of broad impression from the whole of the circumstances of the case, it should be rejected: see X v Y [2010] NZHC 287, at [97]-[98].

1. On any view, a significant amount of the cash which Mr ABA contributed must have come from his handyman partnership with Ms LAD. Indeed, he accepted that: see affidavit of H. ABA filed October 5, 2011, paragraph 52. Thus some of that money must have belonged to Ms LAD. No quantification is possible because of the lack of supporting evidence. Mr ABA used his credit card and some of his own money from a previous marital settlement to pay some household expenses. He also provided cash for groceries and other items. As Mr ABA had no other income, his credit card repayments and other cash spent must have been sourced (at least in part) from the business partnership—and therefore from some of Ms LAD’s funds. Mr ABA said that the partnership grossed $70,000 in 2004-5. Ms LAD’s share of the partnership was 50%.

1. Most of the work that Mr ABA did on the house build and around the yard occurred in his spare time, when he did not have paid handyman work to do. If Mr ABA had not done that work, it would have to have been done by the builders or tradesmen who had been engaged. Presumably, that would have increased the costs for which Ms LAD was liable. Again, no quantification of these costs is possible because of the lack of evidence on the point. For example, would the builder have charged a higher (and if so, how much higher) fee if Mr ABA had not corrected the wrongly-installed valley boards, or finished the soffits (eaves), or installed extra noggins, or fixed the sarking to the frame, or fixed the structural plywood, or hung the doors, etc? Did Mr ABA’s supervision of the build meaningfully contribute to the overall performance and completion of the work? Doubtless his painting walls, ceilings etc would have saved Ms LAD some expenses, but there is no evidence to suggest the amount.

1. The court is not entitled to speculate on these important points. As said in X v Y:

“[95] [T]here is an implicit requirement for the applicant who seeks orders from the Court under [the equivalent New Zealand section] to place before the Court evidence which will both satisfy the Court that one or other of the threshold requirements has been met and that the situation is such that serious injustice would result from failure to make an order.”

1. In my view, Mr ABA did not place before the court evidence which could satisfy the court that serious injustice would result to him from a failure to make the order that he seeks. Whilst it may be thought to be unjust that he will not be receiving any monetary compensation or the like for the time, effort and money that he contributed to the relationship and to Ms LAD’s property, I am not satisfied on the material filed and evidence given that it would constitute a serious injustice—the term prescribed by Parliament.

1. The claim in trusts law: Mr ABA also claims that he is entitled on a resulting or constructive trust to that one-quarter share of the house sale proceeds. However, counsel for Mr ABA did not develop this claim or argue in support of it. In the circumstances, and as the basis upon which the claim was purportedly made are not apparent, the claim in trusts law also fails.

1. Disposition: Mr ABA’s claims fail. His application is dismissed with costs (including reserved costs).