DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by P pursuant to rule 389 of the UCPR to proceed with another step in the action and that he be given leave to proceed with this matter by way of claim and statement of claim. There is a cross application by the respondent that the original application be struck out.

2. [2]
   The applicant and respondent began a relationship in late 1989 or the early 1990’s and became de facto partners sometime between 1991 and 1993 depending on which view of the evidence is accepted.

3. [3]
   The respondent bought a house in 1992 and, as the parties were intending to live together in the house, the respondent and the applicant entered into a deed of agreement in the respondent’s solicitor’s office. It is acknowledged by both parties that they separated in November 2001.

4. [4]
   On 18 November 2002 the applicant commenced proceedings by way of originating application. Orders were made on 6 December 2002 for the management of the matter which saw the respondent file her affidavit in response on 18 December 2002. A property valuation was prepared by Fosters McNab on 15 January 2003 pursuant to the directions. Lists of documents were exchanged in 2003 well outside the date provided for such lists pursuant to the order and the rules. An amended list of documents was provided to the respondent’s solicitors on or about 28 October 2004. Whether this constitutes a step in the proceeding or not is in my opinion a moot point because the delay in the proceedings have been overtaken somewhat by the application to strike out proceedings and the allegations raised by the applicant in his latest affidavit.

5. [5]
   The test for whether matters should be struck out for want of prosecution were considered by Atkinson J in Tyler v Custom Credit Corporation & Ors 2000 QCA 178 at page 2

“there are a number of factors that the court will take into account in determining whether the interests of justice require a case to be dismissed.” Cooper v Hopgood & Ganim [1999] Qld Reports 113 at 119. These include:

1. How long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
2. How long ago the litigation was commenced or causes of action were added;
3. What prospects the plaintiff has of success in the action;
4. Whether or not there has been disobedience of court orders or directions;
5. Whether or not the litigation is being characterised by periods of delay;
6. Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
7. Whether or not the impecuniosity of the plaintiff has been responsible for pays the litigation and whether the defendant is responsible for the plaintiffs impecuniosity;
8. Whether the litigation between the parties would be concluded by the striking out of the plaintiffs claim;
9. How far the litigation is progressed;
10. Whether or not the delay has been caused by the plaintiff’s lawyers being dilatorily. Such deleteriousness would not necessarily be sheeted home to the client but it may be;
11. Whether there is a satisfactory explanation for the delay;
12. Whether or not the delay has resulted in prejudice to the defendant leading to the inability to ensure a fair trial.”

6. [6]
   There has clearly been delay in this case of a significant kind, however it is delay which has not been met with inordinate inactivity. The applicant and the respondent have been exchanging documents and correspondence and documents were exchanged as long ago as a period within 12 months of the notice of intention to proceed being served.

7. [7]
   The success of the applicant’s claim on trial depends on his ability to set aside the agreement which was entered into between the parties. Section 266 of the Property Law Act 1974 states:

“a recognised agreement of de facto partners is a cohabitation or separation agreement of the de facto partners that:

(a) Is a written agreement; and

(b) Is signed by the de facto partners and witnessed by a Justice of the Peace (qualified) or solicitor; and

(c)Contains a statement of all significant property, financial resources and liabilities of each de facto partner when the de facto partners sign the agreement”

8. [8]
   On the material before the court there is prima facie a recognised agreement in this matter. The court may not make a property adjustment order inconsistent with the agreement provision on financial matters, unless there has been in writing or by conduct revocation of a part of the agreement by the de facto partners [s 274 of the Act]. It is not suggested in this case that there has been a variation of the agreement nor is there evidence of serious injustice or impractability such as would lead to the agreement being varied. Counsel for the applicant suggested in submissions that the agreement may be set aside on the basis that it did not contain a statement of all significant property but on the financial documents filed in this court that argument could not be sustained.

9. [9]
   On 9 March 2006 the applicant in this proceeding filed an affidavit alleging that the agreement was signed as a result of fraudulent misrepresentations made by the respondent’s solicitor. Although the subject of the agreement was first raised in the respondent’s material in 2002 it was not until this affidavit was filed that the respondent was aware of the allegations. Whilst one may be rightly suspicious of allegations of this nature being raised for the first time when the applicant is facing the prospects of his application being struck out, the allegation of fraud, if proven , would result in the agreement being set aside. In those circumstances it cannot be said that the prospects of success are remote and therefore the application cannot be struck out.

10. [10]
    The applicant also seeks to proceed with this matter by way of a statement of claim rather than the application already filed.

11. [11]
    This is an unusual way to proceed in a de facto property matter. The statement of claim does not disclose a different type of action and the statement of claim does not even raise the allegation of fraud in relation to the recognised agreement. No basis for the applicant to proceed by way of statement of claim has been advanced in argument and that part of the application is refused.

ORDER

The applicant is given leave to take a further step in the action.  Leave to proceed by way of claim and statement of claim is refused. The respondent’s application to dismiss the applicant’s application is refused