Southwell v Bennett [2010] NSWSC 1372

Southwell v Bennett [2010] NSWSC 1372

The proposed separate determination was not just and convenient. The question as framed was misconceived because, under s 17 of the Property (Relationships) Act 1984, the Plaintiff needed to satisfy only one prerequisite to seek an adjustment order and the existence of a child of the parties meant the proposed question would not necessarily determine the proceedings. Treating the real question as whether the parties were living together in a de facto relationship at all, it was still inappropriate because facts were disputed, evidence and witness credit issues were likely to overlap with any later hearing on contributions and property adjustment, financial matters were relevant to the de...

Jurisdiction
Australia
Judgment Date
01 December 2010
Procedural Posture
Procedural Ruling in Proceedings for Property Adjustment Orders Under S 20 Property (relationships) Act 1984 / Defendant's Notice of Motion for Separate Determination of a Question
Outcome
Defendant's application for separate determination dismissed with costs.
Legal Topics
['separate Determination of Questions' 'adjustment of Property Interests' 'existence of De Facto Relationship' 'overlapping Evidence and Witness Credit' 'just, Quick and Cheap Resolution of Proceedings']
['practice and Procedure' 'property Relationships' 'de Facto Relationships'] ['separate Determination of Questions' 'adjustment of Property Interests' 'existence of De Facto Relationship' 'overlapping Evidence and Witness Credit' 'just, Quick and Cheap Resolution of Proceedings']

Case Brief

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Procedural Posture

Procedural Ruling in Proceedings for Property Adjustment Orders Under S 20 Property (relationships) Act 1984 / Defendant's Notice of Motion for Separate Determination of a Question

Legal Issues

  1. 1 ['Whether the Court should order separate determination of whether the parties lived together as a de facto couple for a period of more than 2 years having regard to s 4 of the Property (Relationships) Act 1984.' 'Whether separate determination would be just and convenient having regard to the risk of overlapping evidence, disputed facts, witness credit issues, appeals, cost and delay.' 'Whether the proposed question would determine the whole proceedings given s 17 of the Property (Relationships) Act 1984 and the existence of a child of the parties.']

Ratio Decidendi

The proposed separate determination was not just and convenient. The question as framed was misconceived because, under s 17 of the Property (Relationships) Act 1984, the Plaintiff needed to satisfy only one prerequisite to seek an adjustment order and the existence of a child of the parties meant the proposed question would not necessarily determine the proceedings. Treating the real question as whether the parties were living together in a de facto relationship at all, it was still inappropriate because facts were disputed, evidence and witness credit issues were likely to overlap with any later hearing on contributions and property adjustment, financial matters were relevant to the de...

Court Disposition

Defendant's application for separate determination dismissed with costs.

Orders

  • ["The Defendant's notice of motion is dismissed with costs." "The proceedings are stood over to the Registrar's List for further directions on 14 December 2010."]