Beattie v Reid [2000] NSWSC 97 | Case summary

court must find satisfied before it can grant leave, it is not a condition the satisfaction of which requires the granting of leave. The use of the expression "may" in that subsection gives the court a residual discretion and other matters relevant to the interests of justice as between the parties can be taken into account including, for example, the question of whether there is an adequate explanation for delay which has occurred." 5 Bryson J continued, at 687:- "The section appears to me to treat an application for leave to apply as a normal event, calling for the court to consider two stages, a finding relating to hardship and the exercise of a discretion, without any special jealousy for the observance of the time limit or particular concern for it. The language of the section is not such as to extinguish claims unless the court makes an exception; but section 18 regulates the presentation of claims in different ways according to the time when they are presented, imposing a requirement to obtain leave to apply in cases such as the present. In considering whether the court should exercise a discretion conferred by statute to make an order in favour of some course, it is usual to consider whether there is a sound and positive ground or a good reason for making the order. Ultimately, however, it is not in my understanding legally necessary to define exactly the ground on which a discretion is exercised favourably to an applicant. There is a favourable exercise of discretion when the court comes to the view that there should be a favourable exercise, which I would restate as the view that it is appropriate in the circumstances that there should be an order. I regard it as relevant to the exercise of that discretion to consider what explanation for delay is offered, but my primary concern ought, in my opinion, to be whether the case put forward is an appropriate case for the plaintiff to apply for an order. While I prefer litigants to proceed in a timely way, subsection (2) ought not, in my opinion, to be viewed as an opportunity to impose order on litigants or to instil discipline in them." 6 I turn to the first question, namely, the question of hardship. The principal asset of the parties is the property at 60 Harrabrook Avenue, Five Dock. It seems that this property was purchased for $17,000. The parties are agreed that $7,000 of the funds came from the mother of the defendant and that $2,000 was the balance of the cash used to purchase the house. The parties are at issue as to whether $2,000 came from one of them or from their joint savings. The balance of $8,000 was borrowed from the Commonwealth Bank. There is no evidence before me of who made the repayments in respect of the Commonwealth Bank loan. 7 The plaintiff appears to have worked in full time employment continuously through the relationship. The plaintiff described her income as modest and was used for the purposes of the relationship. The defendant was also employed except for a period of some ten years. Throughout that period he lived on borrowed funds, according to him, of some $200,000 which were ultimately to be repaid when he received compensation for his injury. He also has in a similar way contributed to the expenses of the relationship. The evidence is in a preliminary state and it is not possible to determine with any precision the extent of each party's contribution to the living expenses of the relationship. 8 Because of the defendant being out of work at times and the nature of his shift work, the parties are agreed that the defendant took an active role in raising the plaintiff's children over the eighteen years of the relationship. According to the plaintiff he would collect the children from school and look after them. The evidence does not address the home maker contributions of each party and accordingly that material is not before me. 9 After separation in 1990 there was still continued contact between the parties. There was indeed a continuing financial inter-dependence in that the defendant made payments to the plaintiff on her version of $500 per week. The defendant also gave evidence that over the period after separation he paid approximately $80,000 in all to the plaintiff. According to the plaintiff she admits receiving one sum of $20,000 and that she does agree with the defendant's evidence that she recalls telling the defendant that she would repay the money that she used for her own benefit out of the sale of her own property at Balmain. In due course this property was sold and no amount was repaid. This payment of $20,000 was in about 1993 more than six years ago. 10 The application before me was conducted without cross examination and thus it is not possible on this application to determine what the defendant might achieve on a prima facie basis if he was able to bring proceedings under the Property (Relationships) Act. In the marriage of Whitford (1979) FLC 90-612 the Federal Court when discussing a similar section in the Family Law Act 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." 11 Given the existence of the present proceedings the relevant matter is an assessment of what the defendant might be able to achieve in the present matter and that which he may achieve if he was allowed to make a claim under the Property (Relationships) Act. Even on the application under s 66G it is clear that the defendant would be able to argue for a greater share of the division of the proceeds of sale based upon his contributions to the initial purchase. One would think that the advance by his mother would be regarded as a gift to him and his contribution leading to an equitable interest in the property somewhat greater than that of plaintiff or, alternatively, a constructive trust based upon the circumstances of the joint endeavour. One matter that would not be taken into account in any such claim would be the parenting contributions. These appear to be substantial on the defendant's part and cover a substantial period. The children were very young when they became part of the family and were raised to adulthood during the time the parties were together. 12 The other area of importance on the question of hardship is the recovery of any amounts provided by the defendant to the plaintiff after termination of the relationship. There is no doubt that any right to claim the majority of the payments at common law would be statute barred. Accordingly, if the facts are appropriate, a claim under the Act may allow the taking into account of post separation payments particularly as children were involved and one of the parties has had the use of the home since separation. See for example, Williamson v Williamson, Cohen J 18 September 1992. I would not rate this chance highly but there is that possibility. 13 Against these aspects of hardship one has to look at the situation of the plaintiff and any hardship she may suffer. The costs of proceedings are, of course, always a hardship. However, in the present case the plaintiff has commenced her proceedings and it would seem that whether or not leave is granted to bring the cross claim the parties will be involved in the costs of a disputation over the proceeds of sale of the property. In the circumstances it seems that there is little hardship on the part of the plaintiff. In the circumstances I am satisfied that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if the leave were granted. 14 It is then necessary for me to consider matters of discretion in deciding whether or not to grant leave. As indicated one of the matters is the explanation for delay. Paragraphs 12 and 13 of the defendant's affidavit of 17 September 1999 were in the following form:- "I did not commence proceedings against the plaintiff after our separation as she indicated to me she would repay me from the sale of the Balmain property. I have had a number of health problems. I had an accident in 1979 at work. I was unable to work for approximately 10 years. I borrowed moneys on which to run the household of approximately $200,000. That money was repaid when I received my compensation moneys. I had a heart attack in 1989 and a second hear attack in October 1992. I have not worked since October 1992. I received superannuation and other termination pay of approximately $100,000. It was those moneys which were used to pay the plaintiff's living expenses and repay the loan to the Sydney Credit Union. It was also for health reasons that I was not able to consider taking legal action against the plaintiff." 15 It is a long period from 1990 until 1999. It was in 1993 that the payment of $20,000 was made to the plaintiff. According to the defendant there are a number of statements made over the years about repayment by the plaintiff from the proceeds of the sale of her Balmain property. It seems from some banking records tendered that other payments may have been made in late 1995. It would seem to be in the context of promises made by the plaintiff that the defendant may have been reluctant to bring the proceedings. There is also, of course, the evidence that he had two heart attacks which no doubt would have some effect on him. Although it is not a very satisfactory explanation I think it does explain in part why proceedings were not taken earlier. 16 I am satisfied that it is appropriate to grant leave and, accordingly, I make order 1 in the Notice of Motion. 17 Subject to submissions I order each party's costs of the motion to be each party's costs in the cause.

Beattie v Reid

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Judgment (10 paragraphs)

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