Time limit to start property settlement proceedings upheld against husband

Time limit to start property settlement proceedings upheld against husband

Property – application for leave to institute proceedings pursuant to section 44(3) refused – restraint on bringing further proceedings pursuant to section 79 – considerable delay in bringing proceedings – applicant may have claim against solicitor in respect to delay – respondent solely contributing to mortgage, maintaining the property and renovations since separation – intermingling of respondent and new husband’s assets – direct and indirect contributions of the respondent’s parents.

It therefore follows, from those authorities in my view, that I must consider and determine the following matters:

1. whether hardship would be caused to the husband if leave were not granted;
2. whether, if hardship is established, I am persuaded that the discretion should be exercised;
3. whether the husband has a prima facie case or a real probability of success;
4. whether the costs of litigation will be as much or more than the husband is likely to be awarded;
5. what is the length of delay;
6. what were the reasons for the delay;
7. what is the prejudice to the respondent due to the delay;
8. assess the probable outcome of the husband substantive claim;
9. whether the husband took all reasonable steps to pursue his claim;
10. whether there is any evidence to suggest that the applicant at some stage abandoned his case.

Assessment

108. The evidence establishes that there has been considerable delay.
109. Between January 2012 and January 2017, when the respondent was served, some five years has passed.
110. Three years and three months had passed between the party’s divorce and the time of filing.
111. From the time the applicant first saw a lawyer in August 2014 until the filing of his application in December 2016, 2 years and 4 months had passed. On any view that is a considerable delay.
112. As to the reasons for that delay the evidence establishes that the husband did not want to take any action until his son had finished school, that child being in year 11 when the parties separated. That child finished school in 2013. The husband took no steps to commence proceedings at that time.
113. The husband says that thereafter he could not commence proceedings because he did not know where the wife was living.
114. I do not accept that evidence. The respondent was contacted in 2014. The next contact the applicant had with the respondent, based on the evidence before me, is when the respondent was personally served with the applicant’s application.
115. No evidence is provided as to how the applicant became aware of the respondent’s address. I am not satisfied that the applicant did not know the respondents address at all times.
116. I am not satisfied that the husband took all reasonable steps to pursue his claim. The length of delay in and of itself represents a very casual approach to this litigation.
117. I am satisfied that there is some evidence to suggest that the applicant at some stage abandoned his case.
118. The wife says he was fully aware that he had no claim to the property since the time the property was transferred into her name.
119. The husband says that he knew it had to be transferred into her name because his credit rating was no good. The husband then took no steps to make a claim on the property until at least 2 years and 10 months after separation.
120. That attempt was in my view very much a half-hearted attempt. The husband then takes no further steps it seems until filing his application in December 2016, some 2 years 4 months after his initial contact with the respondent.
121. In those circumstances it is reasonable for the respondent to consider that the applicant abandoned his case.
122. As to whether there is hardship caused to the applicant if the claim is not permitted I note that in assessing hardship I must find that the applicant has a prima facie claim worth pursuing.
123. This case is significantly impacted upon due to a number of factors namely:
     1. the length of delay;
     2. the financial and non-financial contribution arguments by both parties; and
     100. the intermingling of funds in relation to the subject property for some considerable period of time.
124. In effect there will be three people involved in the litigation. The property does not represent a substantial asset.
125. Having regard to the significant period of time post separation that the respondent has been responsible for the maintenance, further renovations and payment of mortgage, the fact that the evidence, I believe, is most likely to establish that the respondent was the primary income earner, and the indirect contributions and direct contributions made by the respondent’s parents, leads in my view to a very limited claim for the applicant.
126. The solicitor for the applicant has estimated his costs in relation to the further proceedings quite conservatively in my view.
127. I say this particularly having regard to the difficulty that delay will bring in obtaining necessary evidence, the fact that the respondent’s partner will no doubt be joined; and the fact that the respondent says she will bring a Kennon type claim to the proceedings.
128. The solicitor for the applicant conceded that the applicant may have a claim against his firm due to the matters he sets out in his affidavit.
129. I am concerned that the costs of litigation might well be as much or in fact more than the applicant might be likely to be awarded doing the best that I can to assess the possible outcome of the husband’s substantive case if leave would be granted.
130. The degree of the hardship suffered by the applicant may indeed be ameliorated should he have a successful claim against his solicitor.
131. Whilst I accept that there may be some minimal hardship to the applicant, I am not persuaded for the reasons I have set out that I should exercise my discretion and allow the applicant to commence proceedings out of time.