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1 The plaintiff claims that, between September 2001 and September 2003, she lived with the defendant in a "domestic relationship" as that term is defined in s.275 of the Property Law Act 1958 - that is a "relationship between two people who, although not married to each other, are living or have lived together as a couple on a genuine domestic basis (irrespective of gender)".

2 The plaintiff acknowledges that the parties separated in September 2003. She alleges however that the relationship resumed in November 2004. It was finally terminated, according to her account, in April this year.

3 The defendant challenges substantive parts of each of these assertions. He admits to a sexual relationship with the plaintiff "until about September 2003"; but he otherwise describes it as that of a "boyfriend/girlfriend". He maintains (as I understand his position) that what followed in the period described by the plaintiff as "the second period" - that is, the period between November 2004 and April 2006 - was, at best, little if anything more than a friendly acquaintanceship.

4 Part 9 of the Property Law Act is headed "Property of Domestic Partners". Pursuant to its provisions, a domestic partner may apply to a court for an order for the adjustment of interests with respect to the property of one, or both, of the parties to the relationship: s.279. On the other hand, the court may make such an order only if it is satisfied of three things: first, that at least one of the partners lived in Victoria on the day on which the application was made; secondly, that both partners have lived together in Victoria for at least one third of the period of their relationship; and, thirdly, that (save for exceptions that are presently irrelevant) the relationship endured for at least two years: ss.280 and 281.

5 The first of these pre-conditions is not presently in issue. The second and third are, because the defendant maintains that, since the relationship never existed, there can be no question of the parties living together in Victoria for any period covered by the legislation.

6 There is another (potential) barrier to an application for an order for the adjustment of property interests. It is that such an order must be made within two years after the day on which the relationship ended: s.282(1). A court may, however, grant leave to a domestic partner to apply for an order after the expiration of that period if the court is satisfied that greater hardship would be caused to the partner applying if that leave were not granted than would be caused to the other partner if it were: s.282(2).

7 The plaintiff has made an application for an order, or orders, adjusting the property interests of herself and the defendant. She made that application by the issue on 1 September 2006 of the writ in this proceeding. The date of issue was more than two years after September 2003, when the first period of what the plaintiff describes as her domestic relationship with the defendant came to an end. However it was, of course, only a matter of months after April this year - that is, the time when, on her account, the relationship reached its finality. Out of what Dr Kovacs, counsel for the plaintiff, describes as an excess of caution, the plaintiff now seeks leave pursuant to s.282(2) of the Act to apply for the "adjustment" order, or orders, she seeks. She has taken this step, so I am informed, because of the possibility that she will not at a subsequent hearing be able to persuade the court that for a period ending in April 2006 she lived as a domestic partner of the defendant - whether in resumption of an earlier like relationship or not.

8 If the leave sought is required, it should in my opinion be granted. The defendant concedes, in my opinion properly, that on the evidence as it presently stands the plaintiff has a case which is sufficiently strong to meet the criterion relevant to this application: no matter whether the test is the existence of a serious issue to be tried, or an arguable case, or some variant of these, that test has in the circumstances of this proceeding been met. That being so, the question is whether the greater hardship would be caused to the plaintiff (if the application for leave is refused) or the defendant (if it is allowed).

9 The statement of claim pleads several causes of action. Apart from the claim that is said to arise under Part 9 of the Property Law Act, the plaintiff alleges that the defendant holds two properties - one in Portarlington and the other in Collingwood - pursuant to a constructive trust or, alternatively, pursuant to an equity of acquiescence. She contends that he holds these properties for himself and the plaintiff as tenants in common in equal shares; and these causes of action will proceed to trial regardless of matter what might be the fate of the application for orders adjusting property interests pursuant to the Property Law Act.

10 The defendant submits that in these circumstances the plaintiff will suffer no hardship were the latter claim to fail at this point. Even were the application for leave to apply for Property Law Act orders out of time refused, the plaintiff could continue to prosecute her other causes of action. Any such refusal would therefore cause her no hardship.

11 The same reasoning, however, applies in reverse. Should the refusal of the application be of no disadvantage to the plaintiff, so likewise it will be of no advantage to the defendant. He submits that he needs, and is entitled, to get on with his life. But his life has, in his employment and otherwise, reached a point of present flux; and until this proceeding is resolved he cannot escape from that condition.

12 So much may be accepted; but the difficulty will not be resolved by refusing the plaintiff the leave that she seeks.

13 In any event, the remedies offered by the Property Law Act are not necessarily dependent upon the same circumstances, or themselves be the same, as those (if any) available to the plaintiff under her alternative pleas - namely, constructive trust and an equity of acquiescence. I do not think that the defendant would be disadvantaged were the plaintiff to proceed on each of the bases upon which she presently relies. On the other hand, if leave were not granted the plaintiff may be shut out of relief to which she is entitled but which is not otherwise open to her.

14 The defendant submits that the evidence presently before the court demonstrates conclusively that there was no "second period" of any domestic relationship such as would fall within the provisions of Part 9 of the Property Law Act. The plaintiff submits to the contrary. She contends that she has at least an arguable case for resumption of the relationship which, according to her, first began in September 2001.

15 The affidavit material filed on behalf of the parties conflicts at points of fundamental importance. In those circumstances it would be improper of me to usurp the function of the trial judge, or some other judge who has reason to evaluate the evidence, by doing more than commenting very briefly upon it. It is sufficient to say that, if the plaintiff is believed, her submissions about the existence of "the second period" may be accepted by the court. Of course, if the defendant is believed, the outcome will be very different.

16 In these circumstances, the plaintiff is in my opinion entitled to leave, pursuant to s.282 of the Act, to apply for an order for the adjustment of interests with respect to the property of one or both of the parties to this proceeding. I will also order that the proceeding pursuant to Part 9 of the Property Law Act be validated with effect from 1 September 2006.