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

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

Leave to bring application out of time was refused because the hardship to the defendant of further proceedings, given the prior settlement agreement and previous litigation, outweighed any potential hardship to the plaintiff. There was no sufficient basis to conclude the settlement had been revoked, and even if hardship was demonstrated, the residual discretion under s 18(2) would not be exercised in favour of the plaintiff.

Jurisdiction
Australia
Judgment Date
30 October 2009
Procedural Posture
Application for Leave Under Property (relationships) Act 1984 (nsw) / Judgment on Application for Leave
Outcome
Application dismissed; statement of claim dismissed. Costs ordered against plaintiff.
Legal Topics
['time Limit for Making Applications' 'leave to Apply Out of Time' 'adjustment of Property Interests' 'effect of Settlement Agreements']
['equity' 'family Law'] ['time Limit for Making Applications' 'leave to Apply Out of Time' 'adjustment of Property Interests' 'effect of Settlement Agreements']

Case Brief

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Procedural Posture

Application for Leave Under Property (relationships) Act 1984 (nsw) / Judgment on Application for Leave

Legal Issues

  1. 1 ['Whether leave should be granted under s 18(2) of the Property (Relationships) Act 1984 (NSW) to make an application to adjust property interests after the limitation period' 'Whether greater hardship would be caused to the applicant if leave is refused than to the respondent if leave is granted' 'Effect of prior settlement agreement on ability to seek relief under the Act']

Ratio Decidendi

Leave to bring application out of time was refused because the hardship to the defendant of further proceedings, given the prior settlement agreement and previous litigation, outweighed any potential hardship to the plaintiff. There was no sufficient basis to conclude the settlement had been revoked, and even if hardship was demonstrated, the residual discretion under s 18(2) would not be exercised in favour of the plaintiff.

Court Disposition

Application dismissed; statement of claim dismissed. Costs ordered against plaintiff.

Orders

  • ['Statement of claim dismissed' "Plaintiff to pay defendant's costs of the proceedings"]