Wilkes v Bykowski

1. [1]

   By Notice of Motion filed 20 October 2016 the Plaintiff seeks summary judgment for possession of land of which she is the registered proprietor. The Defendant, who is in possession of the land, is a person with whom, in the past, she has had a relationship. The extent of that relationship is in dispute. There are proceedings in the Family Court to determine whether there was a de facto relationship and, if so, if there should be an adjustment of financial interests under the Family Law Act 1975 (Cth).

2. [2]

   The Defendant resists the Plaintiff being granted possession for two reasons. First, he submits that the Family Court should decide who of the Plaintiff and the Defendant is entitled to what share of the property. Secondly, he says that as a result of an order of a registrar of the Family Court the present proceedings were stayed with the result that the Plaintiff is not able to proceed on her Notice of Motion seeking summary judgment for possession.

Background

1. [3]

   The Plaintiff filed an affidavit in support of her claim for final relief on 28 October 2015. For reasons that are not at all apparent the evidence contained in that affidavit detailed the whole nature of the relationship between the Plaintiff and the Defendant. Since the Plaintiff’s claim is essentially a straightforward one, namely that she is the registered proprietor of the property and that the Defendant has been required to leave the property, the past relationship between them was largely irrelevant. It is possible, however, that because the Defendant had filed a Notice of Motion on 19 August 2015 seeking a transfer of these proceedings to the Family Court, the Plaintiff thought it best to deal with the relationship by way of pre-emptive strike. In any event, for the purposes of the issues argued between the parties before me it is not necessary to delve into the detail of the relationship. I shall simply summarise what I consider to be relevant for present purposes.

2. [4]

   The Plaintiff purchased the property at 50A Bridge Street, Lane Cove in about 1980. From about 1986 until about 1995 the property was mortgage free. The Plaintiff met the Defendant in 1991. He was a solicitor who had represented her in a personal injuries claim following a motor vehicle accident. The Plaintiff said that in late 1992 the Defendant moved into the Lane Cove property with the Plaintiff. She said in late 1992 they had a brief sexual relationship for no more than two or three weeks. From late 1992 to about 2001 the parties lived at the Lane Cove property and shared the same bedroom but did not have sexual intercourse. At various times the Defendant paid most of the utilities on the property.

3. [5]

   In 1995 the Plaintiff entered into a mortgage with Westpac to guarantee a loan by the Defendant to fund his defence of proceedings that had been commenced against him. The guarantee was called upon. Although the Defendant became bankrupt in February 1998, the Plaintiff and the Defendant between them managed to pay out the loan.

4. [6]

   In 1996 the Plaintiff undertook renovations at the property which were funded by the Defendant. At subsequent times the Plaintiff has lent money to the Defendant which has not been repaid.

5. [7]

   The Plaintiff says from 2001 to January 2015 there were periods of time when the parties slept in separate bedrooms and at other times they shared the same bed but did not have sexual relations. At no time from 1992 has the Defendant paid rent or board to live at the property.

6. [8]

   In about mid-2014 the Plaintiff asked the Defendant to move out of the property. When that did not happen the Plaintiff engaged solicitors to write to the Defendant demanding he vacate the property in December 2014.

7. [9]

   The Plaintiff said that in mid-January 2015 the Defendant went away and the Plaintiff changed the locks at the property. When the Defendant returned the Plaintiff says that he kicked the backdoor in and re-entered the property. From that time he has refused to leave the property. From that time also the Plaintiff moved out the property, she says, due to fears for her safety. She has lived with one of her daughters and the daughter’s husband since that time.

8. [10]

   The Plaintiff wishes to sell the property and use the money to buy a unit. Although a mortgage is still registered on the property nothing is owing under the mortgage.

Procedural history

1. [11]

   On 2 July 2015 the Plaintiff commenced the present proceedings seeking possession of the property. The Defendant filed a Defence to the Plaintiff’s claim for possession on 19 August 2015. It said this:

2. [12]

   On 19 August 2015 the Defendant filed a Notice of Motion seeking that the proceedings be transferred to the Sydney Registry of the Family Court of Australia and be joined to proceedings number SYC5430/2015. Those were proceedings commenced by the Defendant in the Family Court on 18 August 2015 seeking financial orders.

3. [13]

   The Defendant filed an affidavit dated 18 August 2015 in support of his Notice of Motion. He asserts that he commenced a de facto relationship with the Plaintiff in or about 1992 and continued such de facto relationship until approximately December 2014. He said that during the course of such de facto relationship he resided in the same bedroom as the Plaintiff and had sexual relations with her on a regular basis. He claims that throughout the relationship he has shared housekeeping duties with the Plaintiff. He said that in late 2014 his relationship with the Plaintiff broke down. He accepts that received the letter of demand from the Plaintiff’s solicitors requiring him to vacate the property but he declined to do so. He said that in mid-January 2015 the Plaintiff vacated the property and he has continued to reside there since that date.

4. [14]

   Shortly after the Family Court proceedings were instituted, on 23 September 2015 the Plaintiff’s solicitors wrote to the Defendant’s solicitors saying that the Plaintiff agreed to the sale of the Lane Cove property and another property owned by the Defendant at Bogan Gate. The letter went on to say:

5. [15]

   The correspondence was initially ignored by the Defendant’s solicitors but subsequently they wrote saying that their client needed more time to clear out the Lane Cove property so that a market appraisal could be undertaken. At a case assessment conference in the Family Court on 9 November 2015 the Registrar noted that both parties wanted the Lane Cove property sold. That remained the position when the Motion was heard by me; the issue was when the sale should take place, immediately or at the time the Family Court came to adjust financial interests.

6. [16]

   In her Response to the initiating application in the Family Court dated 28 October 2015 the Plaintiff sought that the Defendant’s initiating application be dismissed for want of jurisdiction. The Plaintiff filed an application in the proceedings in the Family Court on 23 December 2015 that the Defendant’s application for final orders and the Plaintiff’s Response objecting to the jurisdiction of the Family Court be expedited. As a result of advice from a registrar of the Family Court concerning the implications of a failure to obtain expedition for the hearing of the whole matter, the Plaintiff filed an amended application on 2 February 2016 seeking these orders:

7. [17]

   On 21 May 2016 there was a conciliation conference in the Family Court proceedings before Registrar Hurditch. Evidence from the Plaintiff’s solicitor, who has experience in Family Court litigation, said that such conferences are conducted as attempts by parties to resolve the dispute between them very much like mediations or informal settlement conferences.

8. [18]

   In her affidavit of 24 November 2016 the Plaintiff’s solicitor gave some information about what occurred at the conciliation conference. She said that at the end of the separate sessions where the Registrar spoke to the parties individually, the Registrar retired on her own to her chambers and prepared a document which came to be exhibit A in the present proceedings. The document is actually headed “Listing Directions” but it details information about the proceedings and makes orders and notations with respect to a large number of matters concerned in the proceedings such as listing arrangements, affidavits and witness statements, subpoenas, offer of settlement, expert evidence and so on.

9. [19]

   The last section of the document is entitled “Other Orders” and is numbered 47. The Registrar wrote this in that section:

10. [20]

    On 7 June 2016 the Plaintiff’s solicitor sought advice from the Family Court about the status of the application for expedition. On 10 June 2016 a reply was received from the Registrar’s chambers saying that the matter had been placed in the pool of cases awaiting hearing dates, and that normally matters placed in the pool are waiting for approximately 18 months.

11. [21]

    The Plaintiff’s solicitor made a further enquiry on 20 October 2016 and received a reply the same day from Registrar Campbell at the Family Court who said that, unless there was a significant urgency, expedition was likely to be in 1 to 1.5 years with a final property hearing being 2 to 2.5 years away.

12. [22]

    On 17 October 2016 the Plaintiff’s solicitor wrote to the Defendant’s solicitor saying that she was no longer prepared to wait until the Family Court advised dates for the determination of the threshold issue. On that basis the Plaintiff intended to file a notice of motion for summary judgment seeking possession of the Lane Cove property. There was no response to that letter.

Submissions

1. [23]

   Most of the argument turned on the construction of what the Family Court Registrar wrote in section 47 of the document headed “Listing Directions”. Although the Defendant accepted that, strictly speaking, the Family Court had no power to restrain proceedings in this Court, the Defendant argued that the Registrar did have power to make orders by agreement. In that regard reliance was placed on s 37A(1)(g) of the Family Law Act. Section 37A enabled the judges of the Family Court to make rules of Court delegating to registrars specified powers of the Court. Paragraph (g) provided:

2. [24]

   The Defendant then pointed to what was contained in paragraph 7 of his affidavit of 19 November 2016 as follows:

3. [25]

   The Defendant pointed to the heading above section 47 of the Listing Directions document which was entitled “Other Orders”. The Defendant said that the second paragraph written in the section was accepted as an order by the Plaintiff at least insofar as expedition of the threshold issue was concerned. The Defendant submitted that, if the reference to the expedition of the threshold issue was an order, what followed in that part of the document referring to the Supreme Court proceedings being stayed must also be regarded as an order. The Defendant submitted that the Registrar could not have made such an order without the parties having agreed upon it in accordance with s 37A(1)(g) of the Family Law Act because that was the only source of power concerning the staying of proceedings.

4. [26]

   The Defendant submitted that the Plaintiff needed to show, in accordance with General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125, that there was no arguable case, and that whether or not an order staying the proceedings had been made was not unarguable.

5. [27]

   Although no objection was taken to the form of paragraph 7(h) of the Defendant’s affidavit, I expressed some concern during the course of argument that there was no evidence on behalf of the Plaintiff from the lawyers that represented her at the Family Court concerning what led to the material in section 47 of the Listing Directions document. Counsel for the Plaintiff sought and was granted a short adjournment to the afternoon of the hearing to obtain such evidence.

6. [28]

   When the hearing resumed he read an affidavit of Belinda Lee Nixon, the solicitor from the Plaintiff’s solicitors who attended at the conciliation conference on 21 March 2016. A fair summary of that material was that Ms Nixon was present with the Plaintiff and Ms Angela Petrie of counsel, that at no time did she hear any discussion about the Supreme Court proceedings and that she gave no instructions to Ms Petrie about staying the Supreme Court proceedings. Ms Nixon made it clear that she was not always present when Ms Petrie was speaking with the Registrar.

7. [29]

   The Plaintiff submitted that what was contained in section 47 should be seen merely as notations by the Registrar and that they did not rise to being designated as orders. The Plaintiff submitted that the Family Court had no power to make such an order and that that was a factor suggesting it was merely a notation. Reference was made to the equivalent part of another Family Court document completed by the same Registrar which plainly contained mere notations despite being in the section of the document headed “Other Orders”. The Defendant’s response was that in that other document the Registrar had clearly written “noted” in contrast to what appeared in section 47 of the document under consideration.

Consideration

1. [30]

   It seems perfectly clear that something must have been said to the Registrar by one or both of the parties at the conciliation conference for her to have written that the Supreme Court proceedings were to be stayed. Given the circumstances in which that document was written and that the parties were not asked if they agreed with what had been written on it there is some chance that there has been some miscommunication between the parties on the one hand and the Registrar on the other. Other evidence suggests that this might be so.

2. [31]

   First, on 2 December 2015, two days before the Defendant’s Notice of Motion to transfer the proceedings to the Family Court was due to be heard in this Court, the solicitors for the Plaintiff wrote to the Defendant’s solicitors saying:

3. [32]

   It can be observed from that letter and the consent orders that there was no agreement to stay the proceedings in this Court but merely to adjourn the proceedings together with the Defendant’s Notice of Motion to 1 April 2016. Further, any adjournment was to be until the threshold issue was decided. It was hoped that the threshold issue would have been expedited and, perhaps, dealt with before that time. In fact, as the parties agree, the Registrar appears to have made an order that the threshold issue be expedited. It is not apparent to me from an examination of s 37A where the Registrar’s power to expedite the proceedings is derived but the parties appeared to accept that the Registrar had the power.

4. [33]

   Secondly, of some, but not determinative, significance is the content of the reasonably detailed report of Ms Angela Petrie, the Plaintiff’s counsel, of the conciliation conference on 21 March 2016. It contains no mention whatever of any proposal put forward or any agreement reached about staying the present proceedings. In the light of the evidence of Ms Nixon that no instructions were given to Ms Petrie to seek a stay, if Ms Petrie has sought one I would have expected it to be mentioned in the letter. Seeking such a stay would have been within the ambit of her retainer and implied authority notwithstanding an absence of express instructions: Harvey v Phillips (1956) 95 CLR 235 at 243.

5. [34]

   Associated with this second matter is the rhetorical question put in submissions by counsel for the Plaintiff; why would the Plaintiff (or those acting on her behalf) have proposed a stay in circumstances where the Plaintiff had been out of her house for (then) 14 months and the Defendant was residing there paying no rent or occupation fee. That matter may not carry great weight in the light of the offer by the Plaintiff in the letter of 2 December 2015.

6. [35]

   Thirdly, the subsequent history of these proceedings and the Defendant’s approach to them are relevant. To determine whether a contract was formed and what its terms are, both pre-contractual and post-contractual conduct may be considered: County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193 at [8] – [17].

7. [36]

   On 29 March 2016, a week after the conference, the Defendant’s solicitor sent an email to the Plaintiff’s solicitor saying (inter alia):

8. [37]

   On 1 April 2016 when the present proceedings returned before the Registrar both the proceedings and the Defendant’s Notice of Motion were stood over to 21 October 2016 with liberty to relist on seven days’ notice. On 17 October 2016, as noted earlier, the Plaintiff’s solicitor wrote to the Defendant’s solicitor saying that the Plaintiff was intending to file a motion seeking summary judgment.

9. [38]

   The Plaintiff filed her Notice of Motion for summary judgment on 20 October. When the matter came before the Court on 21 October the Registrar made the following orders which were agreed between the parties:

10. [39]

    Although both Motions were fixed for hearing before me, the Defendant as late as 21 November 2016 when he served his written submissions gave notice that he would not be proceedings with his Motion to transfer the proceedings. That decision appears to be related to the raising by the Defendant for the first time in his affidavit of 19 November 2016 of the notations by the Registrar in the Listing Directions document.

11. [40]

    At no time did the Defendant take any steps in this Court to stay the proceedings pursuant to what was said to be the agreement of the parties to do so. The email of 29 March did not mention a stay. Rather, the Defendant’s solicitor “proposed” a re-listing at a future time. In particular on 1 April 2016 there was an agreement to stand the proceedings over to 21 October 2016.

12. [41]

    On 21 October the Defendant did not suggest that the Plaintiff should not have filed her Notice of Motion for summary judgment nor that directions should not be made for the hearing of that Motion because the parties had agreed to stay the Supreme Court proceedings. More particularly, the making of directions by the Registrar for the hearing of the Defendant’s Notice of Motion was entirely inconsistent with any suggestion that the Supreme Court proceedings were stayed. If they were stayed, there would simply be no need for a hearing of the Defendant’s Notice of Motion because the parties would be awaiting the hearing of the expedited application in the Family Court for the determination of the threshold issue. If that issue was decided against the Defendant the Family Court would have no jurisdiction to make any order in relation to the Lane Cove property. The result would be, if the Defendant’s Motion had been determined in this Court in a manner that resulted in the transfer of the proceedings to the Family Court, that such failure by the Defendant in the Family Court would necessarily require re-transfer of the proceedings to this Court.

13. [42]

    In any event, what was proposed by the Plaintiff’s solicitors on 2 December 2015, and consented to by the Defendant’s solicitors, was merely the adjournment of the present proceedings on a particular basis. That basis clearly anticipated the threshold issue in the Family Court being determined in a relatively prompt fashion.

14. [43]

    Fourthly, it seems clear that what the Registrar was noting relevant to the order for expedition on the threshold issue was that the proceedings in this Court “were”, not “were to be”, stayed pending that determination. That is, the Registrar was noting, perhaps a little inaccurately on two levels, that the parties had agreed that the Supreme Court proceedings were not to progress until the threshold issue had been determined by reason of the proceedings having been adjourned to a later date.

15. [44]

    The first inaccuracy was the suggestion that the parties agreed that the Supreme Court proceedings were stayed. The Defendant’s evidence does not extend as far as an agreement. Since the Defendant says merely that he did not oppose the orders proposed by counsel for the Plaintiff, there was no agreement, just no opposition. This is not just semantics, as the Defendant submitted. In the absence of agreement the Registrar had no power to make an order that the Supreme Court proceedings were stayed. Even with an agreement it was not an order enforceable against this Court. At best, with an agreement, it might be thought to be an order restraining the parties in that regard and one that might give rise to an estoppel against a party seeking to progress the present proceedings.

16. [45]

    Secondly, the Registrar referred to the “determination of FCA proceedings” when the highest any agreement went (if there was one) was the determination of the threshold issue and not the whole of the Family Court proceedings.

17. [46]

    Even ignoring the surrounding circumstances, the evidence of what happened at the conciliation conference make it likely that, at best, what the Registrar wrote was a notation of the Registrar’s understanding of what was said to her. For the reasons given, it was not accurate.

18. [47]

    When the surrounding circumstances are added, I am entirely satisfied that there was no agreement that these proceedings were or were to be stayed, and that what appears in the Registrar’s writing in section 47 of the Listing Directions document was not an order inasmuch as it refers to the Supreme Court proceedings. There is nothing in the evidence to suggest that, prior to his affidavit of 19 November 2016, the Defendant believed that there was an agreement to stay the proceedings.

19. [48]

    Nor is the conclusion that there was no such agreement inconsistent with the acceptance by the parties that the order for expedition was made as a result of the notation to that effect in the same part of the document. Even if the words “Threshold issue to be expedited” are the making of the order rather than (as they appear) a statement of intention in that regard, what thereafter follows (“where respondent asserts there is no de facto relationship is aged 76 and ill health, and is homeless having moved out of the home to which she has legal titile”) is entirely surplusage and does not form part of that order. That strengthens my view that the subsequent reference to the Supreme Court proceedings is a notation only.

20. [49]

    The Plaintiff submitted, in any event, that there was a distinction to be made between a consent order which was based on a true contract between the parties and a consent order that was made on the basis of a proposal by one side with the other side not objecting. Reference was made to Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185; [1982] 1 All ER 377 at 380 where Lord Denning MR (Eveleigh and Templeman LJJ agreeing) said:

21. [50]

    This has been seemingly approved in the New South Wales Court of Appeal in Paino v Hofbauer (1988) 13 NSWLR 193 at 200 and in the High Court in Harris v Caladine (1991) 172 CLR 84 at 104.

22. [51]

    The Plaintiff points to the Defendant’s evidence at the highest which is, not that there was a contractual agreement, but that the Defendant simply did not oppose what was put forward by counsel for the Plaintiff before the Family Court Registrar. Accordingly, the Plaintiff submits, there was no real contract between the parties and the order (if it was one), therefore, was more readily able to be set aside.

23. [52]

    Whilst that may be true it does not seem to me to avail the Plaintiff anything because the Plaintiff has taken no steps to set aside the consent order, if that is what the Registrar’s notation is. The argument may be a good one to justify having that order set aside but that has not happened.

24. [53]

    However, that matter has no significance because, for the reasons earlier given, I am not satisfied that there was any agreement between the parties to stay the present proceedings. I do not consider that what the Registrar wrote about the Supreme Court proceedings being stayed was an order. There is, accordingly, no defence to the Plaintiff’s claim for summary judgment based upon that asserted agreement.

25. [54]

    The other basis upon which it was suggested that a defence is shown to the Plaintiff’s claim for possession is that there are proceedings in the Family Court on the basis that the parties were in a de facto relationship. The Defendant seeks a variation of property rights in the Family Court. The Defendant submitted that the usual position would be that the party who was in the house would have exclusive possession of it and an interim order could be sought in the Family Court seeking exclusive possession.

26. [55]

    Submissions were also made in relation to the approach of the Family Court when determining the pool of assets for division between the parties. That was said to be done at the date of the order of the Court.

27. [56]

    The timing of determination of the pool of assets to be divided does not seem to me to provide any defence to a claim for possession by a registered proprietor. At best it could be argued in support of a stay either of execution of an order for possession or as a condition attached to such writ of possession relating to sale of the property.

28. [57]

    In Holder v Zeiher [2014] NSWSC 556 the Plaintiff resided in a property legally owned by the Defendant and he lived elsewhere. He sought possession of the property. There was an issue about whether the Plaintiff and the Defendant had been in a de facto relationship. The Plaintiff resisted possession on the basis that she wished to establish that there had been a de facto relationship in the Family Court. I said:

29. [58]

    Whilst I accept the present Defendant’s submission that the position in Holder v Zeiher was not entirely analogous to the present because of the matters referred to at [42] of that judgment, a mere demonstration that there was a de facto relationship between the parties would not preclude an order for possession in this Court where there was no evidence, as here and in Holder, that the registered proprietor had bought the property for the exclusive possession of the other party. The position is stronger in the present case because both parties agree that the property should be sold and the Defendant accepts that the Plaintiff should be entitled to 55% of the proceeds of sale.

30. [59]

    Accordingly, the second basis put forward by the Defendant for resisting an order for possession does not provide a defence to such a claim.

31. [60]

    As far as the question of the Registrar’s notation about a stay of the present proceedings is concerned, I bear in mind the various ways the test is expressed in General Steel Industries for granting summary judgment. Whether what was written by the Registrar constitutes an order is a matter of construction and/or law. The matter has been fully argued on the present application. In General Steel Industries Barwick CJ said (at 130):

32. [61]

    In my opinion, the Defendant has no arguable defence to the claim for possession.

Conclusion

1. [62]

   Accordingly, I make the following order: