Supreme Court New South Wales Medium Neutral Citation: Holder v Zeiher [2014] NSWSC 556 Hearing dates: 7 and 14 May 2014 Decision date: 14 May 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. The Defence filed 19 November 2013 is struck out. 2. Judgment for the Plaintiff for possession of the land comprised in certificate of title folio identifier 20/805325 known as 18 Namatjira Avenue, Londonderry, New South Wales. 3. Leave to the Plaintiff to issue a writ to enforce the judgment of the Court, such writ not to be executed before Friday 25 July 2014. 4. Unless the Defendant appears before me on 18 July 2014 at 2.00pm to seek a stay based on the state of matters in the Family Court and/or the stage any negotiations have reached for the sale of the property the writ will be executed on 25 July 2014. 5. Liberty to apply on 2 days' notice. Catchwords: REAL PROPERTY - possession of land - plaintiff is registered proprietor - defendant asserts de facto relationship with plaintiff as a defence - no proceedings taken asserting de facto relationship in Family Court or Federal Circuit Court until proceedings for possession commenced - no application for extension of time when relationship as asserted by defendant terminated more than two years earlier - defendant swore in earlier proceedings that there was no genuine relationship - defence struck out Legislation Cited: Family Court Rules Property (Relationships) Act 1984 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: Mark Christopher Holder (Plaintiff) Felicity Zeiher (Defendant) Representation: Counsel: D Perrignon (Plaintiff) In person (Defendant) Solicitors: Mills Oakley Lawyers (Plaintiff) In person (Defendant) File Number(s): 2013/312016 Judgment 1The Plaintiff is the registered proprietor of land known as 18 Namatjira Avenue, Londonderry. The Plaintiff asserts in the Statement of Claim that the Defendant has been since May 2010 in possession of the property to the exclusion of the Plaintiff. Despite letters requiring her to vacate she has not done so. 2The Plaintiff seeks possession of the land. 3On 27 November 2013 the Defendant filed a Defence in these terms: 1. That the Originating Process be set aside as per the Notice of Motion filed by the Defendant. 2. That the Supreme Court is not the appropriate jurisdiction for this matter as there is evidence of a de facto relationship between the Plaintiff and the Defendant between October 2008 and December 2010 during which time the property in question was acquired. Where there is a question of the existence of an eligible de facto relationship, this is required to be determined by a Federal Circuit Court or Family Court as per the Family Law Act. 3. That the Plaintiff has previously filed in the Federal Circuit Court regarding this matter (SYC6099/2012) asking that the Court declare that no de facto relationship existed between the Plaintiff and the Defendant. The Plaintiff amended his Initiating Application including the invoking of cross-vesting the jurisdiction of the Supreme Court for relief through an almost identical Statement of Claim on the 10th December 2012. Federal Magistrate Walker Ordered on the 5th April 2013 that the Plaintiffs Amended Application be withdrawn and discontinued and that the Plaintiffs Application be dismissed. 4 Leave is sought to amend this defence should this be required on the receipt of further legal advice. 4The Defendant also filed a Notice of Motion dated 15 November 2013 seeking an order that the originating process be set aside under r 12.11(1) UCPR although without identifying on what basis, and seeking leave to amend the Defence "should this be required on the receipt of further legal advice". 5The Defendant had lodged a caveat on 17 April 2013 claiming: An Estate, Equitable and Beneficial Interest through the Doctrine of Resultant Trust, the Option to purchase land and Fee Simple. It is not at all clear what that means although it can be inferred that one basis for the caveat is the doctrine of resulting trust. 6The facts set out in the caveat to justify the interest were these: Pursuant to a relationship between the registered proprietor and the caveator and the promissory equity at the acquisition of the property and the subsequent maintenance, development, repair and improvement of the property by the caveator. 7This caveat lapsed because a lapsing notice was filed and no action was taken by the Defendant to extend the caveat and pursue her claim. The Defendant claims not to have been served with the lapsing notice. 8She filed a Notice of Motion in the present proceedings on 31 March 2014 seeking a number of orders including an order that she be permitted to lodge a caveat in the same terms as that lodged on 17 April 2013. 9The matter came before me for early judicial directions on 21 March 2014. The Defendant appeared for herself. Despite the terms of her Defence the Defendant had taken no action to seek orders in the Family Court or the Federal Magistrates Court for an adjustment of property arising out of the alleged relationship. 10I was informed that the Plaintiff had earlier sought a declaration in the Family Court that there was no de facto relationship between them. That application was dismissed, according to the Defendant, because it was held there was no jurisdiction in the Family Court to make such a declaration. 11I considered that, because the Defendant was not legally represented, she should have one last chance to establish any right that she had to the property by an application to the Family Court or whatever the appropriate court was that had jurisdiction in the matter. I directed that any such application was to be made by 11 April 2014. On that basis I adjourned the proceedings to 23 May 2014. I granted liberty to the parties to apply on two days' notice. 12Pursuant to that liberty I was requested by the Plaintiff to list the matter for further directions earlier than 23 May. The request was made at a time when no application by the Defendant to the Family Court had been served on the Plaintiff. 13The matter came before me on 7 May 2014. It was apparent that the Defendant had made application to the Family Court on 14 April 2014 but had not served it until 25 April 2014 because under the Family Court Rules she apparently had 14 days to serve it. I do not consider that the filing of that application on 14 April is material. Nor does the Plaintiff so contend. 14The Application sought only two final orders as follows: 1. An order that the applicant and respondent be subject to an adjustment of property. 2. That the title of 18 Namatjira Avenue, Londonderry, NSW 2753 be transferred to the applicant. 15No application was made to extend the time under s 18 of the Property (Relationships) Act 1984 (NSW). That section requires an application to be made within the period of two years after the date on which the relationship ceased. The Defendant has at all times claimed that the relationship existed between October 2008 and December 2010. 16Section 18(2) of the Act provides: A court may, at any time after the expiration of the period referred to in subsection (1), grant leave to a party to a domestic relationship to apply to the court for an order under this Part (other than an order under section 27 (1) made where the court is satisfied as to the matters specified in section 27 (1) (b)) where the court is satisfied, having regard to such matters as it considers relevant, that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted. 17The return date for the application in the Family Court was 30 July 2014. 18The Plaintiff in his affidavit in the Federal Magistrate's Court sworn 9 October 2012 said that he first met the Defendant in December 2008 and that not long thereafter they started going out as girlfriend and boyfriend. 19The property was purchased by the Plaintiff in April 2010 for $368,000. The Plaintiff's parents contributed about $74,000 plus legal and other purchase expenses. The Plaintiff obtained a mortgage from the ANZ Banking Group for $294,000. 20In an affidavit filed in the Federal Magistrates' Court in support of his application the Plaintiff said it was agreed that the Defendant and her children would move into the Londonderry property and that she would pay rent to the Plaintiff's mortgage account. The Defendant moved into the property with her children in about April 2010 and has lived there ever since. The Plaintiff says that he and the Defendant separated in December 2010. As far as it goes, that is consistent with the Defendant's evidence. Those matters do not necessarily lead to the conclusion that there was a de facto relationship. 21The Plaintiff says that the Defendant has paid amounts totalling $5,895 towards the mortgage between 14 May 2010 and January 2011. He says she has made no payments since 27 January 2011 by way of rent, occupation fee or moneys towards the mortgage. He has continued to pay the mortgage although he has fallen into arrears. 22The Plaintiff applied to the Consumer Trader and Tenancy Tribunal after having served a Notice of Termination by a Landlord of a Residential Tenancy Agreement. On 27 April 2011 the application to the Tribunal was dismissed on the basis that it could not be established there was a residential tenancy in existence between the parties. It is noted that in the reasons for dismissing the application the Tribunal member observed that the present Defendant submitted that there was a de facto relationship. 23On 19 July 2011 the solicitors for the Plaintiff wrote to solicitors then acting for the Defendant requiring the Defendant to vacate the property by 5 August 2011. Negotiations were then entered into which included an offer by the Defendant to purchase the property from the Plaintiff. That offer was rejected and the Defendant was again required to vacate the property in September 2011. 24On 11 October 2012 the Plaintiff sought declarations in the Federal Magistrates' Court that a de facto relationship never existed between the Plaintiff and the Defendant, and a declaration that he was the sole owner of the property at 18 Namatjira Avenue, Londonderry. He also sought an order that the Defendant vacate the property within seven days of the order. 25In response to that application the Defendant filed a Response where she sought a declaration that a de facto relationship existed between the Plaintiff and her, and sought orders that she have exclusive occupancy of the Londonderry property, that the title of the property be transferred to her, that the Plaintiff pay her maintenance and that he pay her an amount from his superannuation. That Response was dated 15 November 2012. 26On the same day the Defendant swore a lengthy affidavit detailing all the reasons why the Defendant said there had been a de facto relationship and why she should obtain the orders she had sought. 27On 18 December 2012 the Defendant filed an Amended Response to the Plaintiff's application. The orders she sought were these: 1. An order to dismiss the initiating application pursuant to Jurisdiction. 2. An order for a stay of proceedings pursuant to Jurisdiction. 3. An order for a stay of proceedings in regard to orders sought by the applicant's initiating application until any other applications filed in the Federal Magistrates' Court involving the parties of Zeiher and Holder are heard. 28It is not at all clear what order 3 means since it does not appear that there were any other applications filed in the Federal Magistrates' Court between the parties. 29On 22 March 2013 the Defendant made application to the Federal Magistrates' Court seeking the following orders: 1. An order pursuant to s 4AA of the Family Law Act that the initiating application of Mark Christopher Holder does not meet the eligibility criteria required for the determining of financial matters between genuine parties to a de facto relationship that has broken down. 2. An order pursuant to s 39B of the Family Law Act 1975 "jurisdiction in de facto financial causes" that the Federal Magistrates' Court does not have jurisdiction in this matter. 3. An order that the initiating application of Mark Christopher Holder is dismissed. 4. An order that all directions and proceedings in this matter is (sic) dismissed. 5. Costs. 30On 22 March 2013 the Defendant filed an affidavit sworn 6 March 2013 in the proceedings in the Federal Magistrates' Court. In that affidavit she said this: 1. Mark Christopher Holder affirms that the relationship between him and myself during the time period from December 2008 to December 2010 was not a genuine de facto relationship. 2. I do not contest the affirmation of Mark Christopher Holder that the relationship between him and me during the time period from December 2008 to December 2010 was not a genuine relationship. 3. That in order to lodge an application in the Federal Magistrate (sic) Court regarding financial matters that the application must meet the eligibility requirements for a genuine de facto relationship. 4. Before the Court can determine HOLDER'S financial dispute he must satisfy the Court of all of the following. (a) He was in a genuine de facto relationship with his former partner which has broken down. (b) He meets one of four gateway criteria. (c) He have (sic) a geographical connection to a participating jurisdiction. (d) His relationship broke down after 1 March 2009; although he may be able to reply (sic) to the Courts if his relationship broke down prior to the date applicable to his state. 5. The initiating Application of Mark Christopher HOLDER does not meet all of these requirements. (italics added) 31On 12 March 2013 the Defendant filed a Notice of Discontinuance with respect to her initial Response dated 15 November 2012 to the Plaintiff's application in the Federal Magistrates' Court. 32On 5 April 2013, no doubt because of what appeared in the Defendant's affidavit of 6 March 2013, the Plaintiff filed a Notice of Discontinuance of his application in the Federal Magistrates' Court. 33On 5 April 2013, on the Plaintiff's application, the Court made these orders: 1. The orders sought in the amended initiating application filed on 10 December 2012 be discontinued and withdrawn. 2. Leave is granted to file the Applicant's Notice of Discontinuance in Court this day. 3. By consent, all applications in the matter be dismissed. 4. Leave is granted to the parties to re-list the matter within 21 days in relation to any costs application. 34The Defendant swore an affidavit on 25 February 2014 in the present proceedings where she said this: My affidavit accompanying reflected that I did not contest the Plaintiff's allegation that he did not believe us to be in a de facto relationship between December 2008 and December 2010, however the Applicant had not specified any time frame. 35Whilst it is true that the Plaintiff's Application did not specify a time frame for the relationship, that was hardly surprising since he was asserting a negative, namely, that there never was a relationship. However, the Defendant's affidavit filed in those proceedings in the Federal Magistrate's Court sworn 6 March 2013 showed clearly that she understood that the period of the relationship that was being disputed by the Plaintiff was December 2008 to December 2010. Paragraph 1 of that affidavit made that clear. If there was any doubt, paragraph 2 reiterated the dates where the Defendant said that she did not dispute that the relationship in that period was not a genuine de facto relationship. 36She says further in her affidavit of 24 February 2014 that when the Federal Magistrate made the orders dismissing the Plaintiff's application he said to her "You have the orders you asked for". She said that she understood this to mean that she was correct in her legal argument that the Plaintiff's initiating application was invalid and should never have been brought before the Court. 37In the circumstances of the filing by the Defendant of her affidavit of 6 March 2013 and the Notice of Discontinuance filed by the Plaintiff I do not accept that there was any determination by the Federal Magistrates Court that it did not have jurisdiction. 38On 3 October 2013 a further letter went from the Plaintiff's solicitors to the Defendant requiring her to vacate the property. It was said that if she failed to do so within five days the solicitors were instructed to commence proceedings. She did not do so and the present proceedings were commenced. 39The matter is before me for early judicial directions under the Supreme Court Possession List Practice Note. A principal matter for my consideration is whether the Defence filed discloses a reasonable defence on the merits to the claim. If not, that Defence may be struck out whether or not there is a Motion to do so by the Plaintiff. 40In a case such as the present it is necessary to have regard to the course of events and the surrounding circumstances to ascertain whether there is a reasonable defence on the merits disclosed. 41The following matters are relevant to that determination: (1) If, as the Defendant now asserts, there was a de facto relationship no application was made within the two year period limited under the Property (Relationships) Act was brought. There is no explanation for that failure; (2) The present application was only made after the present proceedings came before me. On the somewhat sparse information that I had available I gave the Defendant an opportunity to make such an application if she intended to do so. The application that was filed neither sought an extension of time, which is necessary, nor any interim orders, nor was there an affidavit filed disclosing, at the very least, that possession proceedings were pending in this Court; (3) When the failures referred to in (2) above were drawn to the Defendant's attention by a detailed letter from the Plaintiff's solicitors dated 29 April 2014, instead of amending the application she had made the Defendant filed a Notice of Discontinuance of those proceedings and commenced entirely new proceedings which had the effect of delaying a determination in the appropriate federal court by almost a month. It is apparent from the Defendant's previous dealings in the Family Court that she was aware that documents could be amended within proceedings; (4) When the Plaintiff sought the declaration that there was no de facto relationship the Defendant's initial Response was to assert that there was such a relationship and to seek property orders. Why the Defendant then chose to file the Amended Response is not made clear by what she said in her affidavit of 25 February 2014 (at [34] above) nor by any other evidence. (5) The Defendant has sworn that she does not contest the assertion that the relationship between the parties from December 2008 to December 2010 was not a genuine de facto relationship. That statement is entirely consistent with the fact that the Defendant has not (until very recently) taken any steps, other than responsive steps, to seek any form of a property settlement. The fact that she made such an application in response to the application of the Plaintiff but then withdrew it might be argued to be an Anshun estoppel against the Defendant. It might also be inferred that the Defendant did not, on reflection, consider that there had been a de facto relationship. (6) It is necessary for the Defendant to show that greater hardship would be caused if leave were not granted to an extension of time than would be caused to the Plaintiff if that leave were granted. The Defendant has not included in the affidavit she has sworn in these proceedings any matter touching on that question of hardship. (7) The Defendant has a strong motive not to advance the application in the Family Court with any expedition. She has been residing in the property since the end of 2010 (when she now claims the relationship ended) and has not paid any monies by way of rent or occupation fee since January 2011. (8) The Defendant does not set out any facts in her affidavit that could lead to the view that the property was bought for her exclusively or that she would be allowed to occupy the house exclusively. Indeed, she does not, in her oral submissions, contend that it was bought for her exclusively. In her affidavit in the Federal Magistrates' Court sworn 15 November 2012 she spoke of an agreement for the Plaintiff and her to buy a house together and that, although it would be bought in the Plaintiff's name initially so that he could utilise the First Home Owner's Grant, her name would be added to the title after the purchase of the house, and that there would be an agreement about joint ownership. In that affidavit she agreed that both parties paid the mortgage and the utilities. (9) Similarly, in her affidavit in these proceedings of 25 February 2014 she spoke of an agreement between the Plaintiff and her to acquire the property together. Again, she asserted that the Plaintiff said her name would go on to the title after it had been purchased. She said the Plaintiff promised that her "equal entitlement to the Property" would be formalised. (10) The Defendant's affidavit of 14 March 2014 filed in support of her motion regarding the caveat speaks also of the "shared acquisition and ownership" of the property. 42The Plaintiff establishes that he is the legal owner of the property and is entitled to possession of it. The Defendant's evidence is contradictory about whether there was a de facto relationship. The two significant matters suggesting that there was not such a relationship are the Defendant's joining in the assertion in the Family Court that there was no such relationship and her sworn testimony in that Court that there was no genuine relationship. 43Whether or not there was such a relationship, there is no evidence at all that the property was bought for her solely nor evidence that she is entitled to possession of the property to the exclusion of the Plaintiff. Even if she is entitled to a share in the proceeds of the sale of the property as a result of amounts paid towards the mortgage (as her caveat suggests) or because a de facto relationship existed, that is not an entitlement to possession against the registered proprietor. 44Demonstrating that there was a de facto relationship does not disclose a reasonable defence to the claim for possession. Her Defence should be struck out and judgment given for possession to the Plaintiff. 45In the circumstances that an application has been brought in the Family Court it would not be appropriate at the present time to permit execution on the judgment. However, if the Defendant fails to take appropriate steps to expedite the family law proceedings and seek any appropriate interim orders that position may change. 46Accordingly, I make the following orders: 1. The Defence filed 19 November 2013 is struck out. 2. Judgment for the Plaintiff for possession of the land comprised in certificate of title folio identifier 20/805325 known as 18 Namatjira Avenue, Londonderry, New South Wales. 3. Leave to the Plaintiff to issue a writ to enforce the judgment of the Court, such writ not to be executed before Friday 25 July 2014. 4. Unless the Defendant appears before me on 18 July 2014 at 2.00pm to seek a stay based on the state of matters in the Family Court and/or the stage any negotiations have reached for the sale of the property the writ will be executed on 25 July 2014. 5. Liberty to apply on 2 days' notice. ********** 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. Decision last updated: 15 May 2014