New South Wales Supreme Court CITATION : Henry v Ford [2009] NSWSC 1253 HEARING DATE(S) : 30 October 2009 JUDGMENT DATE : 30 October 2009 JURISDICTION : Equity JUDGMENT OF : White J EX TEMPORE JUDGMENT DATE : 30 October 2009 DECISION : Defendant's notice of motion filed 21 August 2009 dismissed with costs. CATCHWORDS : PROCEDURE – Application to strike out and for summary dismissal – submitted that plaintiff ought to have brought relief she now seeks by cross-claim in earlier proceedings - reasons for the plaintiff's failure to cross-claim and the reasonableness of that position cannot be properly adjudicated on application for summary dismissal – application dismissed LEGISLATION CITED : Property (Relationships) Act 1984 (NSW) Contracts Review Act 1980 (NSW) CATEGORY : Procedural and other rulings Ford v Henry [2009] NSWSC 147; (2009) 41 Fam LR 1 CASES CITED : Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 PARTIES : Plaintiff: George Francis Henry Defendant: Debra Anne Ford FILE NUMBER(S) : SC 3148/09 COUNSEL : Plaintiff: T Hodgson Defendant: T J Morahan SOLICITORS : Plaintiff: Nicholl & Co Defendant: Hozack Clisdell Lawyers IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WHITE J Friday, 30 October 2009 3148/09 George Francis Henry v Debra Anne Ford JUDGMENT 1 HIS HONOUR: This is an application by the defendant for an order under r 14.28 of the Uniform Civil Procedure Rules that the statement of claim be struck out, or for an order under r 13.4 that the proceedings be summarily dismissed as an abuse of process. By his statement of claim filed on 10 June 2009 the plaintiff seeks orders under s 20 of the Property (Relationships) Act 1984 (NSW) to adjust the interests of the parties in property. 2 On 5 December 2007 the present defendant instituted proceedings as plaintiff seeking a declaration that an agreement made between the parties called "Terms of Settlement" and executed on 2 September 2005 was a valid and binding agreement between the parties, with certain consequential relief. The document, signed by both parties on 2 December 2005 headed "Terms of Settlement," was headed with reference to the Property (Relationships) Act and stated that the parties consented to certain orders. These included the sale of what was called the former matrimonial home and the division of the sale proceeds in a stated proportion. 3 The agreement also expressed the parties' consent to declarations being made as to their entitlement to other property. The document stated that the parties acknowledged that it was a settlement pursuant to the Property (Relationships) Act and was intended to operate in full and final settlement of all financial dealings between the parties arising out of their relationship. 4 The proceedings commenced by the present defendant in 2007 were heard in February this year by Austin J. His Honour declared that the agreement was valid and binding and made a declaration as to the beneficial interests of the parties. In the course of Austin J's reasons, his Honour observed that the only issues raised by the prayers for relief were whether the terms for settlement were valid and binding and gave rise to equitable interests that should lead to a trust for sale and whether the Terms of Settlement should be avoided under the Contracts Review Act 1980 (NSW) (Ford v Henry [2009] NSWSC 147; (2009) 41 Fam LR 1 at [4]). No proceedings had been instituted by either party for relief under the Property (Relationships) Act. 5 The present plaintiff, then defendant, did not file a cross-claim seeking relief under the Act. The reason, it is said, that the present proceedings are an abuse of process is that the plaintiff ought to have sought the relief she now seeks by cross-claim in the 2007 proceedings. Counsel for the present defendant submits that the present plaintiff would not be entitled to relief under the Act by reason of the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 6 On an application to strike out and for summary dismissal on this ground, it is incumbent on the defendant to show that a defence to the plaintiff's claim based upon his failure to raise the claim in the 2007 proceedings would be bound to succeed, so that it is not seriously arguable that the plaintiff would be entitled to relief under the Act. Such a defence is not clearly established either as a matter of law or fact. In Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332, Brennan and Dawson JJ said (at 346): " A plaintiff who has an unadjudicated cause of action which can be enforced only in fresh proceedings cannot be precluded from taking fresh proceedings merely because he could have counter-claimed on that cause of action in a forum chosen by the opposite party in proceedings in which the opposite party sued him except in a case where the relief claimed in the second proceedings is inconsistent with the judgment in the first ." (Citation of authority omitted) 7 It is plainly at least seriously arguable that as a matter of law, failure of the plaintiff to file a cross-claim in the earlier proceedings is not a ground which would necessarily preclude him from obtaining relief in these proceedings. 8 As to matters of fact, if the principles in Port of Melbourne Authority v Anshun Pty Ltd are applicable, there would be questions as to the reasons the present plaintiff did not file a cross-claim in those proceedings and the reasonableness of his decision not to do so. Notwithstanding the views expressed by Austin J on 17 March 2009 when dealing with, amongst other things, a question of a stay of his Honour's orders, I do not think that the reasons for the plaintiff's failure to cross-claim and the reasonableness of that position can be properly adjudicated on an application for summary dismissal. 9 For these reasons I order that the defendant's notice of motion filed on 21 August 2009 be dismissed with costs. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.