Gardner v Jameson [1999] NSWSC 269 (30 March 1999)

Last Updated: 17 August 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Gardner v Jameson [1999] NSWSC 269

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 1241/99

HEARING DATE{S): 30 March 1999

JUDGMENT DATE: 30/03/1999

PARTIES:

Arthur Alan Gardner (P)

Julianne Islay Jameson (D)

JUDGMENT OF: Master McLaughlin

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Plaintiff in Person

No appearance for Defendant

SOLICITORS:

CATCHWORDS:

ACTS CITED:

De Facto Relationships Act 1984

DECISION:

JUDGMENT:

SUPREME COURT OF

NEW SOUTH WALES

EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 30 March 1999

1241/99 ARTHUR ALAN GARDNER -v- JULIANNE ISLAY JAMESON

JUDGMENT

1 MASTER: These proceedings were instituted by the plaintiff Arthur Alan Gardner acting for himself without the benefit of a solicitor or a barrister. The proceedings were instituted by the filing of a Statement of Claim on 1 February 1999. That Statement of Claim sought relief under the De Facto Relationships Act 1984.

2 In essence, the relief sought in the Statement of Claim was the effectuation of an agreement which had already been entered into between the plaintiff and the defendant, Julianne Islay Jameson.

3 It would appear that the plaintiff and the defendant had been in a de facto relationship from May 1988 until July 1995 and had, during the course of that relationship, acquired a house property situate at and known as 11 Vines Avenue, Forestville.

4 The parties had reached an agreement that the defendant would transfer to the plaintiff her interest in that house property, which was held by them as joint tenants, upon the payment to her by the plaintiff of the sum of $30,000. Of that sum the amount of $2000 had already been paid before the filing of the Statement of Claim.

5 At the same time as the Statement of Claim was filed on 1 February 1999 there was also filed a document entitled "Order" which was signed by the plaintiff and also by the defendant. Her signature appeared over the words "the defendant's consent to the order". The substantive part of that document is as follows:

By consent, the Court orders that -

(1) the plaintiff pay to the defendant the amount of $28,000;

(2) the defendant transfer her share in the property at 11 Vines Avenue, Forestville, to the plaintiff.

6 It would appear that no order was able to be made in accordance with that agreement between the parties, because the Statement of Claim was filed more than two years after the termination of the de facto relationship; that two year period being referred to in section 18(1) of the De Facto Relationships Act as the period in which an application to the Court for an order of the nature of the present relief claimed by the plaintiff should be made. Further, the Statement of Claim did not include an appropriate claim for relief by way of the extension of that period, or the granting of leave to the plaintiff to make the present application after the expiry of that period, as contemplated by subsections (2) of section 18.

7 Subsequently, on 15 March 1999, the plaintiff filed a Notice of Motion seeking the granting to him of leave, pursuant to section 18(2) of the Act, in order to apply for consent orders in accordance with the agreement between the parties manifested by the document entitled "Order" to which I have already referred.

8 In support of that Notice of Motion there has been filed an affidavit of the plaintiff, Arthur Alan Gardner, sworn 12 March 1999. The ground upon which the plaintiff seeks leave is that he was, in fact, unaware of the limitation period prescribed by section 18(1) of the Act and that he has remained living in the house property and paying all outgoings, including mortgage repayments in respect thereto, since the termination of the relationship with the defendant.

9 Apparently it was only when the plaintiff sought to re-finance the mortgage that he became aware of the practical problems resulting from the defendant still remaining registered as a joint owner of the subject property.

10 In all the circumstances, it seems to me appropriate that, firstly, the leave contemplated by section 18(2) of the Act should be granted to the plaintiff; and, secondly, that orders of the nature sought in the document signed by the plaintiff and the defendant should be made.

11 I should also note that the plaintiff has stated that he did not expect the defendant to appear today and that it was for that reason that she had signed the written document evidencing her consent to the proposed orders. The matter was called and there was no appearance for the defendant.

12 Accordingly, I make the following orders:

1. I note that these proceedings have been settled in accordance with a document entitled "Order" signed by the plaintiff and the defendant and filed in Court on 1 February 1999.

2. I order that leave be and hereby is granted to the plaintiff to apply for an order for relief of the nature sought in the Statement of Claim after the expiration of the period referred to in section 18(1) of the De Facto Relationships Act 1984.

3. I order that, upon payment by the plaintiff to the defendant of the sum of $30,000 ($2000 being part of which sum, already having been paid), the defendant transfer to the plaintiff her interest in the house property situate at and known as 11 Vines Avenue, Forestville.

4. I make no order as to costs, but indicate that each party will bear his or her own costs of the proceedings.

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LAST UPDATED: 16/08/1999