Majak v Rose

The plaintiff and the defendant, Alan Rose, were at one time in a de facto relationship. They jointly owned a property in Bangalow Street, Ettalong, on which were constructed two residential units. The relationship ended, and a dispute over the division of property ensued. This was principally litigated in the Family Court of Australia and in the present proceedings in this Court.

The plaintiff commenced proceedings in this Court by filing a statement of claim on 20 December 2019. She named as defendants, Russell Byrnes who had been the principal solicitor for Mr Rose in the Family Court proceedings as the first defendant, Mr Rose as the second defendant, and Mr Russell Byrnes’ son Matthew, also a solicitor who assisted his father in acting for Mr Rose.

On 21 February 2020 the Registrar ordered that the statement of claim be struck out with liberty to re-plead. An amended statement of claim was filed on 23 March 2020. It sought declarations and damages in relation to an apprehended violence order that had been taken out against the plaintiff by the second and third defendants.

Mr Rose and his new de facto partner had sought an apprehended violence order against the plaintiff on 12 February 2014. Another solicitor, a Mr Rivere, acted for Mr Rose in those proceedings. The application was consented to by the plaintiff on a without admissions basis and was later extended on a contested basis.

The plaintiff had earlier commenced proceedings in the District Court naming as defendants, Mr Rivere, Mr Rose and his de facto partner Miss Reberio. On 26 March 2020 the plaintiff filed an amended statement of claim in the District Court seeking damages on the basis that the application for the AVO was an abuse of process. Procedural directions have been made in the District Court proceedings, and they are effectively on hold until a notice of motion filed in this Court by Mr Rose, mentioned below, is resolved.

On 25 June 2020 Rothman J dismissed the Supreme Court proceedings as against Russell Byrnes and Matthew Byrnes: Byrnes v Majak [2020] NSWSC 906. On 10 July 2020 the plaintiff was given leave by the Registrar to serve any proposed amended statement of claim on Mr Rose by 31 July 2020.

On 9 July 2020 Mr Rose filed a notice of motion in this Court, seeking an order pursuant to s 140 of the Civil Procedure Act 2005 (NSW) that the proceedings in the District Court be transferred into this Court and be consolidated with the proceedings in this Court. The basis for that motion is that the issues raised in the District Court proceedings are largely the same as those raised in the proceedings in this Court, namely, claims by the plaintiff arising out of the AVO which was made against her in 2014. It is fair to observe that, in filing that motion, Mr Rose and his solicitors assumed that the proposed further amended statement of claim would repeat the matters pleaded against him in the amended statement of claim that was dealt with by Rothman J on 25 June 2020. It should be noted in that regard that Rothman J’s orders did not affect the pleading against Mr Rose, to the extent at least that it could be unravelled from the claims made against the Messrs Byrnes.

On 27 August 2020 the plaintiff filed a notice of motion seeking leave to file a further amended statement of claim (“the proposed claim”) in the form of a document which had been wrongly filed by her on 2 August 2020. The proposed claim pleaded a fundamentally different claim against Mr Rose, and it did not include matters arising from the application for the AVO. Rather, the proposed claim pleaded matters concerned with the Ettalong property, which had been the subject of the Family Court proceedings. Mr Rose was the owner/builder in respect of that property.

This judgment concerns the plaintiff’s motion for leave to amend her statement of claim in this Court, and Mr Rose’s motion to transfer the District Court proceedings to this Court.

At the outset of the hearing, the plaintiff sought leave to amend her notice of motion to seek an order pursuant to r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) setting aside Rothman J’s judgment. I refused that application. My reasons may be briefly stated. First, Rothman J’s judgment was given on 25 June 2020. That was more than five months before the present hearing. No explanation was provided for the delay. Secondly, no proposed amended notice of motion was available. Thirdly, there was no affidavit setting out any basis for the application, specifically, whether it was asserted that the judgment was entered irregularly, illegally or against good faith.

As noted earlier, the plaintiff’s proposed claim pleads a fundamentally different case against Mr Rose from what had been alleged in the amended statement of claim. The case as previously pleaded sought declarations and damages based on what was said to be an abuse of process for the defendant seeking an AVO against the plaintiff. The proposed claim seeks damages for loss and damage said to have been suffered by the plaintiff in respect of unfinished building works and defective building works that were being carried out by the defendant at the property in Bangalow Street, Ettalong.

Mr Rose submitted that leave should not be given to the plaintiff to amend in the way she seeks, principally because the claims that she seeks to make arise out of the proceedings which were before the Family Court, and were the subject of a judgment of the Family Court: sub nom Massalski & Riley [2019] FamCA 1013. Mr Rose submitted further that, if these matters were not effectively already determined by the Family Court, they were matters which ought to have been raised in the property proceedings, and that an Anshun estoppel operated to prevent the plaintiff from raising them now in new proceedings.

Mr Rose submitted, alternatively, that the claims were effectively statutory warranty claims under the Home Building Act 1989 (NSW) (HBA) and that the limitation period had expired for the bringing of the proceedings because more than seven years had elapsed since the works were completed. To the extent that the claims relied on breach of contract or negligence, Mr Rose submitted that they were similarly statute-barred because more than six years had elapsed since any breach or since the discoverability of any defects in the building work.

On 24 December 2019 the Family Court made the following orders after a contested hearing:

The plaintiff pleads her proposed claim as follows:

It is apparent from the pleading that the matters about which the plaintiff now complains arise from what was litigated before the Family Court and is governed by the orders of that Court. The plaintiff refers in paragraphs 5 and 6 to the commencement of the Family Court proceedings and the judgment delivered in relation to the property settlement. Significantly, paragraph 8 says that the plaintiff is changing her cause of action in this Court as a result of “new issues arising in out of (sic) the Family Court orders in relation to the subdivision of the property at 29 Bangalow Street”.

Paragraph 25 pleads that, in consequence of the defendant not complying with what were described as his promises and statutory obligations, the plaintiff was forced to seek Family Court intervention to get orders for property settlement. Paragraph 26 pleads that the property settlement orders could not be performed because the defendant failed to subdivide the property because he did not complete all of the construction works and register the strata plan. Paragraph 27 pleads that the Family Court orders could not be performed because the defendant had not complied with his duty to cooperate and his duty to comply with an undertaking he gave to the Local Court on 12 June 2014.

Prayer 4 in the proposed claim seeks that the defendant be restrained from seeking recovery or enforcement of costs orders against the plaintiff. The plaintiff informed me that those costs at least included costs ordered in the Family Court.

Order 17 of the Family Court orders gave liberty to the parties to apply “in relation to the implementation of these orders”.

The plaintiff relied on the fact that part of her claim relies in paragraph 26 on an undertaking said to have been given by Mr Rose in the Local Court to complete the building. She submitted that such an undertaking could not be enforced in the Family Court. However, the substance of her claim is that the Family Court orders cannot be perfected until the building work is completed. It is only the Family Court which can deal with that issue, regardless of any undertakings given elsewhere. The problem is not an undertaking inconsistent with the parties’ obligations under the Family Court orders, which might give rise to different considerations.

It is apparent, therefore, that the claims which the plaintiff makes, relate to compliance with orders made by the Family Court. In any event, s 90RC(2) of the Family Law Act 1975 (Cth) provides:

Given that the Family Court obviously has jurisdiction to deal with the matters, even if this Court had its own jurisdiction, it would necessarily refuse to exercise that jurisdiction in the light of the Family Court orders. The issues raised in the proposed claim concern financial matters between the parties to a de facto relationship. That is no doubt why the orders made deal with the registration of the strata plan and the subdivision of the Ettalong property.

If I am wrong in holding that the proposed claim relates to compliance with the Family Court orders, I consider that the plaintiff is estopped from raising it in these proceedings because it was so relevant to the matters that had to be decided in the Family Court proceedings, that it was unreasonable of the plaintiff not to have raised it in the Family Court proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602; Champerslife Pty Limited v Manojlovski (2009) 75 NSWLR 245; [2010] NSWCA 33 at [3] and [41]. The proposed claim is that the defects and incomplete work are preventing the registration of the strata plan and the subdivision of the property. Where the Family Court made orders about those matters, it was unreasonable of the plaintiff not to have raised those issues or claims in the Family Court proceedings.

Even if, contrary to what I have found, this Court has jurisdiction, the claims are statute-barred. The proposed claim alleges a breach of statutory warranties. That can only be a reference to the Home Building Act 1989 (NSW). For contracts entered into before 1 February 2012, the limitation period under s 18E of the HBA was 7 years. Time runs, ordinarily, from the completion of the work: S 18E(1)(c). Section 3B defines when completion occurs, and sub-s (3) presumes the earliest of four dates. The plaintiff pleads in paragraph 17 that the relevant unit was completed in 2009. Proceedings based on breach of the statutory warranties are, therefore, statute-barred.

For all of these reasons, the plaintiff’s proposed claim will inevitably fail. She should not in the circumstances be permitted to plead it.

Although this is the third iteration of the statement of claim, the effect of Rothman J’s judgment was to leave any claim against Mr Rose on foot, although quite what that claim is, in the light of that judgment, is difficult to discern. The plaintiff appears to accept that she cannot plead a conspiracy against Mr Rose alone, although it not obvious that that was what was pleaded in the amended statement of claim.

Three attempts to plead properly against a defendant might ordinarily mean that the proceedings would be dismissed, having regard to s 56 of the Civil Procedure Act 2005 (NSW). However, I consider that as a self-represented litigant the plaintiff should be given one last chance to plead a maintainable cause of action against Mr Rose. Until such time as that is done, it is not possible to determine the appropriateness or otherwise of removing the District Court proceedings into this Court, although the plaintiff would need to demonstrate why it would be appropriate to have two proceedings in two courts against the same defendant.

Accordingly, I make the following orders: