Bentley v Marsters [2005] NSWSC 346

Bentley v Marsters [2005] NSWSC 346

The Magistrate erred in applying s15(2) because, on his own findings, the domestic relationship lasted at least 29 months and the period during which the parties lived together in New South Wales was only about five or perhaps six months, which was not at least one third of the duration of the relationship. The defendant was therefore disentitled from relying on the deeming provision and appeared unable to satisfy the prerequisites under s15. The appeal was allowed, but the matter was remitted to the Local Court because the Supreme Court was not persuaded that s69 of the Local Courts (Civil Claims) Act 1970 empowered it to dismiss the Local Court proceedings and the Local Court should...

Jurisdiction
Australia
Judgment Date
18 April 2005
Procedural Posture
Appeal From Local Court Decision Concerning an Application for Relief Under the Property (relationships) Act 1984 / Appeal Allowed and Matter Remitted to the Local Court
Outcome
Leave to appeal, if necessary, granted; appeal allowed; no order as to costs of the appeal; Local Court costs reserved; matter remitted to the Local Court for determination.
Legal Topics
['prerequisites for Financial Adjustment Orders' 'residence Within New South Wales' 'deeming Provision' 'appeal From Local Court' 'illegal Presence in the State']
['civil Procedure' 'property Relationships'] ['prerequisites for Financial Adjustment Orders' 'residence Within New South Wales' 'deeming Provision' 'appeal From Local Court' 'illegal Presence in the State']

Case Brief

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Procedural Posture

Appeal From Local Court Decision Concerning an Application for Relief Under the Property (relationships) Act 1984 / Appeal Allowed and Matter Remitted to the Local Court

Legal Issues

  1. 1 ['Whether leave to appeal was necessary and should be granted.' 'Whether the Magistrate erred in applying the deeming provision in s15(2) of the Property (Relationships) Act 1984.' 'Whether the defendant satisfied the prerequisites in s15 for the making of an order under Part 3 of the Property (Relationships) Act 1984.' 'Whether the matter should be dismissed by the Supreme Court or remitted to the Local Court.']

Ratio Decidendi

The Magistrate erred in applying s15(2) because, on his own findings, the domestic relationship lasted at least 29 months and the period during which the parties lived together in New South Wales was only about five or perhaps six months, which was not at least one third of the duration of the relationship. The defendant was therefore disentitled from relying on the deeming provision and appeared unable to satisfy the prerequisites under s15. The appeal was allowed, but the matter was remitted to the Local Court because the Supreme Court was not persuaded that s69 of the Local Courts (Civil Claims) Act 1970 empowered it to dismiss the Local Court proceedings and the Local Court should...

Court Disposition

Leave to appeal, if necessary, granted; appeal allowed; no order as to costs of the appeal; Local Court costs reserved; matter remitted to the Local Court for determination.

Orders

  • ['Leave is granted for the bringing of this appeal, in case it should be necessary.' 'The appeal is allowed.' 'No order is made as to the costs of the appeal.' 'Any question of costs relating to the proceedings in the Local Court is reserved.' 'The matter and any such costs question are remitted to the Local Court...