Hancock v Leech [2009] NSWSC 872

New South Wales Supreme Court

CITATION : Hancock v Leech [2009] NSWSC 872

HEARING DATE(S) : 3 August 2009

JUDGMENT DATE : 27 August 2009

JUDGMENT OF : McLaughlin AsJ

1. I declare that the Plaintiff and the First Defendant were living in a de facto relationship from October 1994 to 4 December 2006. DECISION : 2. I order that the First Defendant pay to the Plaintiff the sum of $697,710. 3. I order that the First Defendant pay the costs of the Plaintiff of the notice of motion filed by the Plaintiff on 29 November 2007, and of the proceedings. 4. I reserve to the Plaintiff liberty to apply in respect to the implementation of the foregoing orders.

CATCHWORDS : FAMILY LAW - de facto relationships - adjustment of interests of parties in property - no participation by First Defendant in proceedings - ex parte hearing

LEGISLATION CITED : Property (Relationships) Act 1984

CATEGORY : Principal judgment

Patricia Margaret Hancock (Plaintiff) PARTIES : William Leech (First Defendant) Christopher John Anthony Leech (Second Defendant) Mineral Sands Technology Pty Limited (Third Defendant)

FILE NUMBER(S) : SC 5262 of 2007

COUNSEL : Ms P. Hancock (in person) No appearance for any Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Thursday, 27 August 2009

5262 of 2007 PATRICIA MARGARET HANCOCK –v- WILLIAM LEECH and 2 ORS JUDGMENT 1 HIS HONOUR: These are proceedings under the Property (Relationships) Act 1984. 2 The proceedings were instituted by statement of claim filed by the Plaintiff, Patricia Margaret Hancock, on 31 August 2007. Three defendants were named in that pleading, being William Leech, Christopher John Anthony Leech, and Mineral Sands Technology Pty Limited. 3 Only the Second Defendant has participated in the proceedings. Neither the First Defendant nor the Third Defendant has filed an appearance or a defence, or has in any other fashion participated in the proceedings. 4 The matter came before Mr Justice Windeyer on 12 October 2007, when orders were made by consent of the Plaintiff and the Second Defendant. Subsequently, on 16 November 2007, orders were made by consent of those parties, dismissing the Plaintiff's claim against the Second Defendant. 5 When the matter was before him on 12 October 2007, Mr Justice Windeyer made an order regarding service upon the First Defendant, which, upon compliance therewith by the Plaintiff, had the consequence that service, in accordance with that order, was effected on or about 16 October 2007. 6 Subsequently, the Plaintiff on 29 November 2007 filed a notice of motion (described as Notice of Motion: Default Judgment for Unliquidated Damages), by which she seeks orders, that judgment be entered in favour of the [ sic ] Patricia Margaret Hancock against the first defendant and third defendant for damages to be assessed and for the property pursuant to section 20 of the Property (Relationships) Act 1984 to be adjusted and for costs. 7 That notice of motion came before me on 17 April 2009, for the allocation of a hearing date. On that occasion the Plaintiff appeared in person (the solicitors who had previously been acting for her having filed a notice of ceasing to act on 1 September 2008). There was no appearance by or on behalf of either the First Defendant or the Third Defendant. Although service upon the First Defendant had been effected in accordance with the order in that regard made by Mr Justice Windeyer, nevertheless (since the Plaintiff said that the letter addressed to the First Defendant, in accordance with Mr Justice Windeyer's order of 12 October 2007, had been returned), for an abundance of caution, I made a direction in the following terms. 2. Direct the Plaintiff to notify the Defendant of the aforesaid hearing date by way of a notice to be published in the Sydney Morning Herald on or before 15 May 2009 in the terms annexed hereto. 8 The substance of that notice was as follows, Take notice that, pursuant to order made on Friday, 17 April 2009 in the Supreme Court of New South Wales the notice of motion filed by the Plaintiff on 29 November 2007 for judgment for damages to be assessed and for the adjustment of property pursuant to section 20 of the Property (Relationships) Act 1984 and for costs will be heard before Associate Justice McLaughlin on Monday, 3 August 2009 at 10 am in the Supreme Court of New South Wales, Court 7D, Law Courts Building, Queens Square, Sydney. 9 Pursuant to that direction, the Plaintiff caused a notice in the foregoing terms to be published by the Sydney Morning Herald on 16 May 2009. The tear sheet from the Sydney Morning Herald of that date was exhibit A in the present hearing. 10 I note that the date of that publication was one day after the date specified in my direction. However, I do not consider that that fact affects the notice itself, especially since the publication was effected on a Saturday (when, presumably, the newspaper had maximum readership), and, in any event, the notice was published more than two and a half months before the date appointed for the hearing of the Plaintiff's notice of motion. 11 When the notice of motion came before me for hearing on Monday, 3 August 2009, the Plaintiff (as on the previous occasion, 17 April 2009) appeared in person. 12 There was no appearance by or on behalf of either the First Defendant or the Third Defendant. In consequence, the hearing of the notice of motion proceeded before me upon an ex parte basis. 13 The statement of claim (which was verified by affidavit of the Plaintiff sworn on 30 August 2007) asserts that the Plaintiff and the First Defendant lived together in a de facto relationship from October 1994 until 4 December 2006, that being a period of more than twelve years. That pleading also set forth details of the assets and liabilities, income and expenditure of each of the Plaintiff and the First Defendant at the commencement of the relationship and at the termination of the relationship, as well as the contributions of the nature referred to in section 20 of the Property (Relationships) Act which the Plaintiff asserted she had made to the First Defendant and to the relationship of the parties. 14 In response to an enquiry from me in that regard, the Plaintiff at the hearing indicated which of the items of relief claimed in the statement of claim she now wished to pursue. 15 The Plaintiff presently seeks relief against only the First Defendant, since (as I have recorded) the claim of the Plaintiff against the Second Defendant has been dismissed, and since, according to what was stated by the Plaintiff during the course of the hearing before me, the Third Defendant (which was a company of which the First Defendant was the sole shareholder and sole director) has ceased to exist. 16 The only relief which the Plaintiff now seeks in the present proceedings is relief against the First Defendant of the nature claimed in paragraph 21 of the statement of claim, to the following effect, (ii) A declaration pursuant to section 56 of the Property (Relationships)Act that the Plaintiff and the First Defendant were living in a de facto relationship from October 1994 to 4 December 2006. (v) A declaration that the proceeds of sale of certain shares disposed of by the First, Second or Third Defendants on behalf of the First Defendant since December 2006 ("the proceeds of sale") are assets of the parties which fall to be determined within this application. (ix) An order that the parties retain all other items of property within their possession, including but not limited to motor vehicles, furnishings, chattels, and personal possessions. (x) Costs 17 It should be noted, however, in regard item (ix), that the Plaintiff asserts that she owned a Nissan Maxima motor car which was retained by the Defendant at the termination of the relationship. 18 Of the foregoing items of relief now claimed by her, the Plaintiff essentially seeks relief regarding the shares referred to in paragraph 21 (v) of that pleading as the "APG shares". Those shares are also referred to in the statement of claim as shares in Austpac Resources NL. 19 In addition, the Plaintiff seeks relief in respect to the Nissan Maxima motor vehicle, which is referred to in paragraph 14A(d) of the statement of claim and to which a value of approximately $12,000 was ascribed. 20 Despite the precise wording of the relief claimed in her present notice of motion, it is apparent that what the Plaintiff is presently seeking is final relief in the proceedings. That is what the Plaintiff herself said she desired when addressing me during the hearing. No purpose – and certainly not the interests of justice – would be served by my making an order in the precise terms in the notice of motion, and then, at a future date, proceeding to a further hearing for the calculation of a monetary amount, if any, to which the Plaintiff might be entitled. 21 I propose, therefore, to treat the present application before as being in the nature of the final hearing of the Plaintiff's claim, especially as the relief sought in the notice of motion includes an order "for the property pursuant to section 20 of the Property (Relationships) Act 1984 to be adjusted". In so doing, I consider that there is no injustice to the First Defendant, who has not participated, and has not manifested any intention to participate, in the present proceedings. 22 No defence having been filed by the First Defendant within the time specified by Part 14 rule 3(1) of the Uniform Civil Procedure Rules 2005, the First Defendant is in default, pursuant to Part 16, rule 2 (1) (a) of those Rules. 23 Part 16 rule 3(1) provides that, If a defendant is in default, the plaintiff: (a) may apply for judgment to be given under this Part, according to the nature of his or her claim for relief, against the defendant in default, … 24 Subrule (1A) of rule 3 makes provision for an application under that rule to be dealt with in the absence of the parties, and provides that such application need not be served upon the defendant. The subject notice of motion appears to contemplate that the foregoing provisions of subrule (1A) apply thereto. 25 It will be appreciated that, consequent upon Part 14 rule 26 (1), the First Defendant having failed to file a defence, all the allegations of fact made by the Plaintiff in the statement of claim are taken to be admitted by the First Defendant. Those admissions then bring into operation the provisions of Part 17 rule 7, subrule (1) whereof provides, If admissions are made by a party, whether by his or her pleadings or otherwise, the court may, on the application of any other party, give any judgment or make any order to which the other party is entitled on the admissions. 26 Not only was the notice of motion accompanied by an affidavit of the Plaintiff sworn 28 November 2007, as well as an affidavit of service (apparently in conformity with the requirements of Part 16 rule 3(2)), but there was also before the Court at the hearing of the present application the affidavit of the Plaintiff sworn on 30 August 2007, verifying the statement of claim, and the further affidavit of the Plaintiff sworn 12 October 2007, which was relied upon at the hearing before Mr Justice Windeyer on that date.