Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Zeiher v Holder [2014] NSWCA 334 Hearing dates: 17 and 23 September 2014 Decision date: 26 September 2014 Before: Beazley P Decision: (1) Notice of motion dismissed with costs; (2) Summons for leave to appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COURTS - jurisdiction - prohibition on instituting and determining appeal other than in Full Court of Family Court - Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 7(5) - where de facto financial cause proceedings instituted in Family Court - whether proceedings were a matter arising under the Family Law Act 1975 (Cth) - meaning of "a matter" COURTS - jurisdiction - Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 7(7) - whether court had commenced to hear a proceeding by way of an appeal - where court had heard notice of motion brought prior to the hearing of the summons for leave to appeal Legislation Cited: Family Law Act 1975 (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392 Eberstaller v Poulos [2014] NSWCA 211 Grace v Grace [2014] NSWCA 86; 284 FLR 94 Macchia v The Public Trustee [2008] WASCA 241; 251 ALR 385 Re Wakim [1999] HCA 27; 198 CLR 511 Category: Principal judgment Parties: Felicity Zeiher (Applicant) Mark Christopher Holder (Respondent) Representation: Counsel: In person (Applicant) D Perrignon (Respondent) Solicitors: In person (Applicant) Mills Oakley Lawyers (Respondent) File Number(s): 2014/271649 Decision under appeal Jurisdiction: 9111 Citation: Holder v Zeiher [2014] NSWSC 556 Date of Decision: 2014-05-14 00:00:00 Before: Davies J File Number(s): 2013/312016 Judgment 1HER HONOUR: On 14 May 2014, Davies J ordered that the defence filed by the applicant (Ms Zeiher) in proceedings brought by the respondent (Mr Holder) to gain possession of property at Londonderry that he owns (the property) and which is occupied by Ms Zeiher, be struck out. His Honour also made an order for possession of the property and gave leave to Mr Holder to issue writ to enforce the judgment of the Court. The writ was not to be executed before 25 July 2014 to allow Ms Zeiher to inform his Honour of the status of proceedings she had brought in the Family Court and/or the stage of any negotiations between the parties for her to purchase the property. 2On 18 July 2014, Davies J refused any extension of the stay of the writ of possession as he was not satisfied that Ms Zeiher had acted expeditiously in relation to either the Family Court proceedings or in respect to negotiations for the purchase of the property. Mr Holder subsequently applied for a writ of possession. The writ has issued and presently lies in the office of the Sheriff. 3On 15 September 2014, Ms Zeiher filed a summons seeking leave to appeal from the orders made by Davies J on 14 May 2014. She also filed a notice of motion in which she sought a stay to restrain the execution of the writ of possession and an order that the stay remain in force pending the determination of an appeal in respect of the orders made by Davies J on 14 May 2014 or the determination of Family Court proceedings that she initiated on 14 April 2014. The notice of motion came before the Court urgently in circumstances where Ms Zeiher had received from the Sheriff a notice to vacate by Friday 19 September 2014. 4The principal reason advanced by Ms Zeiher for the stay is that her proceedings in the Family Court are set down for hearing on 29 November 2014 and she submitted that it is possible that that Court will make an order in her favour including in respect of the occupation of the property. 5It is necessary at this point to refer briefly to some history. The parties had a relationship which commenced shortly after December 2008. Ms Zeiher contends that the relationship extended until December 2010. Mr Holder has stated in his affidavit dated 19 September 2014, filed in response to the notice of motion, that he and Ms Zeiher had a relationship "in the nature of boyfriend and girlfriend" until at least May 2010. However, Mr Holder's position as to the extent of the relationship appears to vary. For example, in his judgment of 14 May 2014, Davies J, at [20], observed: "[Mr Holder] says that he and [Ms Zeiher] separated in December 2010. As far as it goes, that is consistent with [Ms Zeiher's] evidence. Those matters do not necessarily lead to the conclusion that there was a de facto relationship." 6However, in his affidavit of 19 September 2014 in the Court of Appeal proceedings, Mr Holder stated that he: "... continued to have a relationship with [Ms Zeiher] in the nature of girlfriend and boyfriend until at least May 2010." 7In April 2010, Mr Holder purchased the property with funds borrowed from the ANZ Bank and from his parents. He did not contribute any funds to the purchase. He said in his affidavit that at the time he purchased the property, his intention was to live in the property. He applied for and received a First Home Owners Grant in respect of the property. 8The circumstances as to Mr Holder's purchase of the property and Ms Zeiher's occupation of it have been referred to variously in the evidence that was before the Court. 9In 2011, Mr Holder had sought to terminate Ms Zeiher's occupation of the property by bringing proceedings in the Consumer Trader and Tenancy Tribunal (the Tribunal), on the basis that she was a tenant and had not paid her rent. In the determination in those proceedings, the Tribunal member recorded that: "[Ms Zeiher] needed somewhere to live and as the application states, [Mr Holder] purchased the subject premises in order that [Ms Zeiher] may have somewhere to live." 10The Tribunal member also noted that Ms Zeiher had made a number of payments that Mr Holder claimed were rent, but that those payments were paid into Mr Holder's mortgage account as "mortgage payments". The application was dismissed as the Tribunal member was not satisfied that there was a residential tenancy agreement in existence. The evidence adduced had been consistent with a de facto relationship. 11On 11 October 2012, Mr Holder commenced proceedings in the Federal Magistrates Court seeking a declaration that a de facto relationship between him and Ms Zeiher never existed and an order that Ms Zeiher vacate the property. In his affidavit in support, he stated that he and Ms Zeiher agreed that she and her children would move into the property and she would pay rent into his mortgage account. He said that he moved some of his personal possessions into the property. He said that his relationship with Ms Zeiher ended not long after he bought the property. 12Ms Zeiher filed a response in which she initially sought property orders in her favour. She subsequently amended her response seeking an order that Mr Holder's application be dismissed for want of jurisdiction. In her affidavit of 6 March 2013, filed in support of her amended response, Ms Zeiher stated that she did not contest Mr Holder's affirmation that there was no de facto relationship between them. Mr Holder sought the discontinuance of the proceedings. Ms Zeiher agreed with that course. 13On 16 October 2013, Mr Holder commenced proceedings in the Supreme Court for possession of the property. Ms Zeiher filed a defence on 27 November 2013, in which she pleaded, inter alia, that the Supreme Court was not the appropriate jurisdiction as there was evidence of a de facto relationship between the parties. 14On 14 April 2014, Ms Zeiher filed an application for adjustment of property. It is those proceedings that are set down for hearing in the Family Court in November. 15Subject to the question of jurisdiction which is discussed below, there is a further matter of importance in the present application. Mr Holder was subject to an investigation by the Office of State Revenue (OSR) for failing to comply with the conditions of the First Home Owners Grant, namely, the occupancy condition of a continuous six month period of occupation. As a result, Mr Holder was informed that duty, together with interest, was payable on the purchase of the property. At the time the assessment was raised, in December 2013, the amount payable was $15,794.19 comprising duty of $12,060 and interest of $3,734.19. Interest continues to accrue daily at the rate of 10.6 per cent. 16Following representations made by his legal representatives, the OSR allowed Mr Holder's objection to the assessment and the date for the commencement of occupancy was extended until 31 October 2014. Mr Holder was advised he was required to take up use and occupation of the property as his principal place of residence by that date and was required to continuously occupy it for a period of six months. 17Mr Holder has stated in his affidavit that he wishes to take up occupancy of the property by 31 October 2014 so as to comply with this requirement. It is difficult to assess what practical difficulties that will present to Mr Holder, given that he has a relationship with a woman who resides in Bathurst and they have a young child together. Mr Holder currently stays there two nights a week. He otherwise pays rent for shared accommodation in Bathurst where he works as a forklift driver. 18Against that background a question of this Court's jurisdiction arises. 19Jurisdiction is conferred on the Family Court with respect to matters arising under the Family Law Act 1975 (Cth) in respect of which a de facto financial cause is instituted under the Act: s 39B. A de facto financial cause includes an application for orders for maintenance and property settlement made by a party to a de facto relationship after the breakdown of that relationship: Family Law Act, s 4. A de facto relationship is defined in the Family Law Act, s 4AA(1) as follows: "(1) A person is in a de facto relationship with another person if: (a) the persons are not legally married to each other; and (b) the persons are not related by family (see subsection (6)); and (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis." 20In working out whether there is a de facto relationship the court may take into account, relevantly, "the duration of the relationship": s 4AA(2)(a); "the nature and extent of their common residence": s 4AA(2)(b); the degree of their financial interdependence: s 4AA(2)(d); "the ownership, use and acquisition of their property": s 4AA(2)(e); and "the degree of mutual commitment to a shared life": s 4AA(2)(f). 21The Family Court may only make a maintenance or property order in relation to a de facto relationship if the court is satisfied that the period of the relationship was for a period of at least two years: s 90SB(a). Even if not so satisfied, the court may make an order where the applicant has made substantial financial or other contributions and a failure to make a maintenance or property order would result in serious injustice to the applicant: s 90SB(c). 22The Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 7 provides, relevantly, as follows: "7 Institution and hearing of appeals ... (5) Subject to subsections (7) and (8), where it appears that a matter for determination in a proceeding by way of an appeal from a decision of a single judge of the Supreme Court of a State or Territory (not being a proceeding to which subsection (6) applies) is a matter arising under an Act specified in the Schedule, that proceeding shall be instituted only in, and shall be determined only by: (a) the Full Court of the Federal Court or of the Family Court, as the case requires ... ... (7) Where: (a) the Full Court of the Supreme Court of a State or Territory commences to hear a proceeding by way of an appeal; and (b) before the Court determines the proceeding, it appears to the Court that the proceeding is a proceeding to which subsection (5) applies; the Court shall, unless the interests of justice require that the Court proceed to determine the proceeding, transfer the proceeding to the Full Court of the Federal Court or of the Family Court, as the case requires ..." 23The Family Law Act is an Act specified in the Schedule. 24The Uniform Civil Procedure Rules 2005 (UCPR), r 51.2 defines "appeal proceedings" to mean "proceedings in the Court that are commenced by filing and serving a summons seeking leave to appeal or a notice of appeal". Accordingly, Ms Zeiher's summons for leave to appeal is "a proceeding by way of an appeal" within the meaning of the Jurisdiction of Courts (Cross-Vesting) Act, s 7(5). That raises the next question whether "the matter for determination" in Ms Zeiher's summons for leave to appeal is "a matter arising under" the Family Law Act. 25In Re Wakim [1999] HCA 27; 198 CLR 511, Gummow and Hayne JJ, at [140], said: "There is but a single matter if different claims arise out of 'common transactions and facts' or 'a common substratum of facts', notwithstanding that the facts upon which the claims depend 'do not wholly coincide'. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are 'completely disparate', 'completely separate and distinct' or 'distinct and unrelated' are not part of the same matter." (citations omitted) 26In my opinion, a matter for determination in the summons for leave to appeal is a matter arising under the Family Law Act. Ms Zeiher claims that she has been in a de facto relationship with Mr Holder for at least two years and that she is entitled to an order by way of property settlement in respect of the property. She has commenced proceedings in the Family Court making a claim for property settlement and other orders. Ms Zeiher has also made other claims in respect of her entitlement to the property, including that there is an agreement between the parties that the property is owned by them as tenants-in-common. However, that does not deprive the Family Court of jurisdiction, nor does it mean that the Jurisdiction of Courts (Cross-Vesting) Act, s 7 does not apply. Pursuant to s 7(5), if a matter for determination is a matter arising under the Family Law Act, the proceeding is to be determined by the Family Law Court. 27There is a further matter that requires consideration, namely, whether this Court is bound to transfer the summons for leave to appeal to the Family Court. That in turn depends upon whether, by receiving evidence and hearing the parties on the notice of motion, I had commenced to hear "a proceeding by way of an appeal" for the purposes of the Jurisdiction of Courts (Cross-Vesting) Act, s 7(7). That in turn depends upon whether an interlocutory application brought prior to the hearing of the summons for leave to appeal or an appeal involves a court commencing to hear a proceeding by way of an appeal. 28The phrase "proceeding by way of an appeal" has been held to have a wide meaning. In Macchia v The Public Trustee [2008] WASCA 241; 251 ALR 385, Steytler P, with whom Le Miere AJA agreed, at [24], approved both NEC Information Systems Australia Pty Ltd v Lockhart (1991) 22 NSWLR 518 and NEC Information Systems Australia Pty Ltd v Lockhart (1992) 36 FCR 258 and stated: "The words 'proceedings by way of an appeal' have been given a wide meaning in NEC Information Systems Australia Pty Ltd v Lockhart (1991) 22 NSWLR 518 and in NEC Information Systems Australia Pty Ltd v Lockhart (1992) 108 ALR 561. In the former case Kirby P held that a summons for leave to appeal was 'a proceeding by way of an appeal' for the purposes of s 6(9) of the Cross-Vesting legislation. Meagher JA (with whom Samuels JA agreed) was of the view that the expression should be construed as covering all the steps in the appellate process, whatever they may happen to be in a given case (531). In the latter case, Black CJ, Lockhart & Gummow JJ held that the expression 'should be interpreted as including all steps in the appellate process including a summons, application or motion for leave to appeal'." 29Macchia was cited with approval by this Court in Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392 at [49] and Grace v Grace [2014] NSWCA 86; 284 FLR 94. Notwithstanding that the phrase "proceeding by way of an appeal" should thus be given a wide meaning as indicated, it is still necessary to determine whether the in the authorities referred to in Macchia the reference to "a summons, application or motion for leave to appeal" includes a notice of motion. 30In the first of those authorities, NEC Information Systems Australia Pty Ltd v Lockhart (1991) 22 NSWLR 518, Kirby P considered that the phrase included a summons for leave to appeal. Meagher JA was of the same opinion, stating, at 531, that the phrase "proceeding by way of an appeal" covered all the steps in the appellate process. However, his Honour's comment was made in the context of determining whether a summons for leave to appeal fell within the statutory phrase. That is no longer a question given the definition of an "appeal proceeding" in UCPR, r 51.2. 31In the second authority, NEC Information Systems Australia Pty Ltd v Lockhart (1992) 36 FCR 258, the Full Court of the Federal Court (Black CJ, Lockhart and Gummow JJ) stated, at 272, that the phrase, "proceeding by way of an appeal" "should be interpreted as including all steps in the appellate process, including a summons, application or motion for leave to appeal". Again, it is apparent from the context of their Honours' remarks that they were referring to the appellate process, whether that be by way of an appeal as of right or an appeal for which leave was required. 32Macchia also involved an application for leave to appeal. However, the applicant required an extension of time to bring the application. The question thus arose whether, when the court dealt with that application, it had "commenced to hear a proceeding by way of appeal" for the purposes of s 7(7) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA). His Honour considered that the position was unclear but, on the authorities to which he had referred, thought it was possible. Without deciding the question, his Honour proceeded on the assumption that the Court had commenced to hear the appeal. 33For myself, I am inclined to the view that the phrase "proceeding by way of an appeal" does not include an interlocutory motion. The statutory phrase is a "proceeding by way of an appeal". An application in such a proceeding does not thereby become "a proceeding by way of an appeal". I am fortified in this view by the observations of the Court in Grace v Grace where Meagher JA observed, at [22], that s 7 draws a distinction between the institution, hearing and determination of an appeal. His Honour continued, at [22], in respect of the hearing of an appeal: "Ordinarily an appellate court 'commences to hear' an appeal when, as constituted for that purpose, it begins to hear addresses from one or other of the parties directed to the determination of the issues in the appeal. It is at that point that the court may be said to embark on a hearing of the merits of the appeal. In R v Lewis (1988) 165 CLR 12 at 15-16, albeit on an application for special leave, a question arose as to whether the Court of Criminal Appeal of the Northern Territory had changed its membership in the course of the hearing of an appeal. Accepting that it was of 'fundamental importance that a court which enters upon the exercise of jurisdiction should see the matter through to finality', the High Court drew a distinction between the giving of directions concerning interlocutory steps to be taken in an application for leave to appeal and the commencement of a hearing of the merits of that application. Although those statements were made in the course of the disposition of a special leave application, they remain of persuasive value. The authorities for this last proposition are cited in the judgment of this Court (Basten, Campbell and Macfarlan JJA) in Bakarich v Commonwealth Bank of Australia (No 2) [2012] NSWCA 390 at [60]." I would add that his Honour's remarks would also apply to the hearing of a summons for leave to appeal: see UCPR, r 51.2. 34Accordingly, it is not necessary to determine, in accordance with s 7(7), whether the interests of justice require me to determine the proceeding or transfer the proceeding to the Family Court. 35That leaves the question of the orders that this Court should make. As I have determined that I have not commenced to hear a proceeding by way of an appeal, I am of the opinion that the only order that I may make is to dismiss the summons for leave to appeal for want of jurisdiction: see Grace v Grace; Eberstaller v Poulos [2014] NSWCA 211. That raises the further matter as to what order is to be made on the notice of motion. In my opinion, as the Court has no jurisdiction to hear the summons for leave to appeal, it is likely that there is no jurisdiction to make any order on the notice of motion and it should be dismissed. 36I would add that in any event, I would not have granted Ms Zeiher the relief she sought on the notice of motion. Whilst it is clear that Ms Zeiher will suffer hardship, both financial and emotional, if the writ of possession is executed, the circumstances were such that there is little, if any, equity in the property. It is doubtful if the equity would amount to $10,000 after selling expenses were paid. There is therefore little available in respect of which a property order may be made. Mr Holder has paid and continues to pay all the mortgage payments except for an amount of $5,895 paid into the mortgage account by Ms Zehier. Mr Holder will also suffer financial hardship if the stay was granted. He would become liable to pay duty and interest on the unpaid duty in respect of his purchase of the home. He would also be required to continue to pay the mortgage without the benefit of occupation or rent. Thus, despite the difficult position Ms Zieher is likely to find herself in, the factors in favour of refusing the stay were greater, in my opinion, than those in favour of refusing the stay. 37The orders I make in the proceedings are as follows: (1) Notice of motion dismissed with costs; (2) Summons for leave to appeal 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. Decision last updated: 26 September 2014