Henry v Ford (No. 2) [2009] NSWSC 1254

New South Wales Supreme Court

CITATION : Henry v Ford (No. 2) [2009] NSWSC 1254

HEARING DATE(S) : 30 October 2009

JUDGMENT DATE : 30 October 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 30 October 2009

DECISION : Refer to paras 23 and 25 of judgment.

CATCHWORDS : PROCEDURE - Application for leave to make an application to adjust property interests pursuant to Property (Relationships) Act 1984 – statement of claim filed almost eight years after termination of de facto relationship and almost four years after settlement agreement made – greater hardship would be caused to defendant if leave given than would be caused to plaintiff if leave refused – application dismissed

LEGISLATION CITED : Property (Relationships) Act 1984 (NSW) Contracts Review Act 1980 (NSW)

CATEGORY : Procedural and other rulings

Ford v Henry [2009] NSWSC 147; (2009) 41 Fam LR 1 CASES CITED : Selmore v Bull [2005] NSWCA 365; (2005) 34 Fam LR 488 Beavan v Fallshaw (1992) 15 Fam LR 686

PARTIES : Plaintiff: George Francis Henry Defendant: Debra Anne Ford

FILE NUMBER(S) : SC 3148/09

COUNSEL : Plaintiff: T Hodgson Defendant: T J Morahan

SOLICITORS : Plaintiff: Nicholl & Co Defendant: Hozack Clisdell Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WHITE J

Friday, 30 October 2009

3148/09 George Francis Henry v Debra Anne Ford (No. 2) JUDGMENT 1 HIS HONOUR: By statement of claim filed 10 June 2009 the plaintiff claims, amongst other relief, leave pursuant to s 18(2) of the Property (Relationships) Act 1984 (NSW) to make an application to adjust the property interests of the plaintiff pursuant to that Act. The only substantive relief sought in the statement of claim is an order pursuant to s 20 of that Act. The plaintiff pleads that the parties were in a de facto relationship. He pleads that they separated in about August 2001. Hence the statement of claim is filed almost eight years after the termination of the de facto relationship. There is a suggestion that the relationship may have continued until some time in 2002 but, on any view, there has been a long delay before these proceedings were commenced. 2 On 2 September 2005 the parties entered into a settlement agreement. They agreed they would consent to orders that the former matrimonial home at Jeremadra be sold at a price agreed upon by the parties, or, failing agreement, established by a selling agent appointed by the Real Estate Institute. They agreed that, upon sale, the net proceeds should be divided 60 percent to the plaintiff and 40 percent to the defendant. They agreed it should be otherwise declared that the parties were solely entitled to all other real estate and certain other identified property in their respective possession at the date of the separation. 3 They agreed to execute all documents to effect a listing of the Jeremadra property for sale and sign all contracts transfers and the like to facilitate the sale. Clause 5 provided that both parties acknowledged that this was a settlement pursuant to the Property (Relationships) Act and was intended to operate in full and final settlement of all financial dealings between the parties arising out of the relationship. 4 Ms Lawrence, solicitor, signed a certificate dated 19 August 2005 of having provided the plaintiff with independent advice. 5 As Austin J observed in earlier proceedings (Ford v Henry [2009] NSWSC 147; (2009) 41 Fam LR 1), the certificate was in the form prescribed by the Property (Relationships) Regulation 2000 and not in the form of the regulation in force at the time the certificate was given. But, as his Honour also observed: " It was not submitted that the use of the old wording of paras 2–4, rather than the current para 2, itself constituted failure to comply with the requirement of s 47(1)(d) that the certificate be 'in or to the effect of the prescribed form'. It seems to me that certification in terms of the old paras 2–4 is probably tantamount to certification of the advantages and disadvantages of making the agreement, as required by the current para 2, and so there would be nothing in a submission relying on the departure from the current prescribed form, were such a submission to be made."