Adam Rodney Slater v Taya Louise Slater and Jillian Ivy De-ath and H & E Developments Pty Limited
[2009] NSWSC 655
•26 June 2009
CITATION: Adam Rodney Slater v Taya Louise Slater and Jillian Ivy De-ath and H & E Developments Pty Limited [2009] NSWSC 655
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 26 June 2009 JURISDICTION: Equity JUDGMENT OF: Slattery J at 1 EX TEMPORE JUDGMENT DATE: 26 June 2009 DECISION: The plaintiff's summons should be dismissed. CATCHWORDS: Extension of caveat - Property settlement proceedings pending - Summons without claim for final relief - Caveat placed on title to subject property - Lack of caveatable interest - Financial and non-financial contributions to property - Offer of payment of proceeds of sale into Court LEGISLATION CITED: Family Law Act 1975
Real Property Act 1900CATEGORY: Principal judgment CASES CITED: Baumgartner v Baumgartner (1987) 164 CLR 137
Bell v Graham [2000] VSC 145
Benthian v Green (1977) 3 Fam LR 11, 579
Dillwyn v Llewelyn (1862) 4 De G F & J 517, 45 ER 1285
Ioppolo v Ioppolo (1978) 5 Fam LR 27
Plimmer v Mayor Wellington (1884) 9 App Cas 699
Morling v Morling (1992) 16 Fam LR 161
New South Wales Trading Club Limted v Glebe Municipal Council (1937) 37 SR (NSW) 288
Wright v Bridge Wholesale Acceptance Corporation (Australia) Ltd (1993) 1 VR 502PARTIES: Adam Rodney Slater (Plaintiff)
Jillian Ivy De-ath (First Defendant)
Taya Louise Slater (Second Defendant)
H & E Developments Pty Limited (Third Defendant)FILE NUMBER(S): SC 3338/09 COUNSEL: Adam Slater (Self Represented Plaintiff)
M G Wong (Third Defendant)SOLICITORS: Adam Slater (Self Represented Plaintiff)
Messrs Dignan & Hanrahan Solicitors (Third Defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST
SLATTERY J
26 JUNE 2009
3338/09 Adam Rodney Slater v Taya Louise Slater and Jillian Ivy De-ath and H & E Developments Pty Limited
JUDGMENT
1 HIS HONOUR: These proceedings were commenced by summons on Monday 22 June 2009 when leave for short service was granted by this Court in the duty list. An affidavit in support of the summons was sworn by Adam Rodney Slater of 22 June 2009. The proceedings were returnable before this Court on 24 June 2009. Mr Wong appeared for the three defendants to the proceedings on that occasion. There is now only one defendant in the proceedings, H & E Developments Pty Limited.
2 There was a degree of confusion in the way the orders were taken out after ex parte relief was given. That resulted in it being unclear to the defendants that Taya Slater and Jillian Ivy Death were indeed joined as the first and second defendants, and H & E Developments as the third defendant. The Court made it clear early in argument that all three were joined as defendants. It has emerged from the course of submissions on both sides that Mr Slater does not seek any relief against either Jillian Ivy Death or his former wife, Taya Louise Slater. Orders were made in the course of the hearing providing for the discontinuance of the proceedings against both of these defendants.
3 The proceedings were heard over a period of days due to the exigencies of the duty list. On 24 June affidavit evidence was read and further oral evidence was given. Supplementary oral evidence was given on 25 June 2009 by the plaintiff Mr Adam Slater. Quite a number of documents were tendered in evidence through him. The affidavit evidence of Jill Ivy Death sworn on 24 June 2009 was read on behalf of the defendant.
4 These proceedings arise out of issues being litigated in the Federal Magistrates Court in relation to the breakdown of the marriage of Adam Rodney Slater and Taya Louise Slater. Mr Slater is the former husband of Taya Louise Slater. Property settlement proceedings in respect of that marriage are listed for hearing in the Federal Magistrates Court on 17 and 18 September 2009.
5 The summons seeks the extension of a caveat until 17 and 18 September 2009. The summons is a handwritten document put together by Mr Slater, who was unrepresented, but who has described the relief he claimed as:
2. Due to the property settlement in the Federal Magistrates Court held on 17 and 18 September '09. Refer to annexure B.”“1. Extension of the caveat until 17, 18 September '09, and
6 The summons does not include a claim for any final relief. The reference in prayer 2 for relief in the summons to "annexure B" is a reference to the document annexure B to the affidavit of Mr Adam Slater sworn on 22 June 2009, which is the caveat.
7 The caveat in question in this matter is caveat number AE80582U, in respect of the property the subject of these proceedings, which I will henceforth refer to as the “subject property”, and which is one of a set of industrial units in the suburb Chipping Norton. The caveat is recorded in the relevant folio of the register 3/SP71475. The registered proprietor of that property is the defendant H & E Developments Pty Ltd ACN 098762497.
8 The estate or interest claimed in schedule 1 of the caveat is described as:
"Claim by the caveator pursuant to section 79 of the Family Law Act 1975 to be determined by the court."
9 The facts stated in Schedule 1 in support of the claimed interest are:
“Financial contribution to the acquisition of the property by the caveator during the marriage, and subject to proceedings in the Federal Magistrates Court."
10 In the second schedule of the certificate of title to the property three caveats are recorded. The first of these is the caveat the subject of these proceedings, caveat AE80582U by Adam Rodney Slater. Also appearing in the second schedule are caveats by Harson Holdings Pty Ltd, caveat AD682704, and a caveat AE474585 by Rodney Roger Slater and Noeline Slater, who are the parents of Adam Rodney Slater. No relief in respect of caveats AD 682704 or AE 474585 is claimed in these proceedings.
11 The urgency surrounding this matter, is that there is an auction of the subject property scheduled to take place tomorrow, 27 June 2009. The plaintiff has not made any complaint about the adequacy of the steps taken to market the property for proposed sale. It is not uncommon in matters coming to the duty list that a caveat is placed on the title by the registered proprietor because of some criticism of the sale process or of the adequacy of efforts made to achieve the best possible sale price by a mortgagee. There is no complaint here about the defendant’s proposed sale of the property tomorrow.
12 The case made by the plaintiff is apparent from the terms of the relief he seeks, in the summons. By the caveat he seeks to ensure that the subject property, which is not in the name of one of the parties to the marriage, or alternatively its proceeds of sale are available to satisfy any declaration that is made of his interests in it during property settlement proceedings under the Family Law Act 1975. I have asked Mr Slater why the caveat was placed on the title to the subject property rather than him seeking orders in the Federal Magistrates Court to restrain the parties to those proceedings from dealing with the proceeds of sale of the subject property. Mr Slater says that there is a claim in those proceedings or on his behalf for an interest in the subject property and possibly to other assets of the defendant but he says he has an immediate fear in respect of the disposal of any deposit which is received on the property if the matter proceeds to auction tomorrow. He claims that he has a caveatable interest in that property. He says that because of these fears he lodged the caveat and he submits that the caveat should be extended.
13 In response the defendant makes four submissions: first, that the caveat does not disclose a caveatable interest; second, that the plaintiff’s claims of having made a financial contribution to the property are not supportable; third, that no claim for final relief is made in the summons and that it is inappropriate to grant relief of an interim kind in respect of a matter such as this without a claim for final relief; and fourth, that it is inappropriate now to extend the caveat because this matter will be dealt with by way of property settlement proceedings on 17 and 18 September and it is open to the plaintiff to go to the Federal Magistrates Court and seek the interim relief he sees fit before that date. Mr Wong says that even if the subject property is sold at auction tomorrow there is no immediate threat of disposal of the proceeds of sale because settlement would not take place for some weeks. It appears from the defendant’s submissions that the disposition of the deposit does not seem to be under immediate threat.
14 The issues presented for my consideration are those issues raised by the defendant. Were I to be against the defendant on those issues and was inclined to extend the caveat, the further issue would arise whether in the exercise of my discretion extending the caveat was the appropriate remedy to protect the plaintiff’s interests. Some debate took place during submissions about my possible exercise of discretion in this case if the plaintiff were to show a prima facie entitlement to relief. The defendant has, commendably, made an open offer in court which would have the effect of securing the net proceeds of sale by way of payment into the Federal Magistrates Court upon those net proceeds being realised from the sale of the subject property. The defendant submits that if this offer were accepted the plaintiff should have no concern about the security of the proceeds of sale pending the determination of the hearing in the Federal Magistrates Court on 17 and 18 September. The plaintiff has not accepted that open offer and seeks to have these proceedings determined.
15 As is evident from these reasons, it is the court's view that the plaintiff's claim fails at the first issue because of the lack of a caveatable interest. Had I not taken that course, the convenient solution in this case is to see the defendant’s offer as the basis of a completely satisfactory substitute for the caveat. That offer as made would fully protect the interests of the plaintiff. There would be no disadvantage resulting to the plaintiff in the caveat being removed upon the defendant’s undertaking to pay the proceeds of sale into the Federal Magistrate’s Court: Wright v Bridge Wholesale Acceptance Corporation (Australia) Ltd (1993) 1 VR 502.
16 The first issue is the question whether the plaintiff has a caveatable interest in the land. Mr Wong's submissions is that the summons should be dismissed because, the plaintiff has a mere claim in the Family Court without making a claim for a particular estate or interest in the land. Mr Wong points to the words of schedule 1 of the caveat, the words:
“Claim by the caveator pursuant to section 79 of the Family Law Act 1975 to be determined by the court."
17 Mr Wong submits that the inescapable conclusion to be drawn from those words is that the claim made in the caveat is a claim that is wholly contingent upon a determination by the Federal Magistrates Court in exercising its powers under s 79. He says that the interest propounded in the caveat and sought to be supported in these proceedings is nothing more than an interest in an action in another court which may or may not succeed. Mr Wong submits such a claim is not a caveatable interest.
18 Mr Wong relies upon the established authorities that a mere claim to exercise a right of action does not constitute a caveatable interest under the Real Property Act, especially where any equitable interest in the property would only be declared upon the determination of such right of action: Benthian v Green (1977) 3 Fam LR 11, 579, Ioppolo v Ioppolo (1978) 5 Fam LR 27, Morling v Morling (1992) 16 Fam LR 161 and Bell v Graham [2000] VSC 145. Mr. Wong submits that the caveat could not be supported for such a claim is merely a claim to exercise a new right of action which is not comprised of an equitable interest in the subject property.
19 It is possible to attempt to read the claimed interest in schedule 1 of the caveat more widely than Mr. Wong submits, but it is difficult to do so. At one stage I thought, giving some latitude to the fact that the plaintiff is a litigant in person, that it may be possible to approach this case on the basis that the description of the caveat is one that may support an estate or interest in the subject property of some kind known to the law, on the basis of the evidence which has been advanced orally by the plaintiff. The plaintiff gave evidence about his alleged financial and non-financial contribution to the construction of the buildings on the subject property. He had a full opportunity to put before the court material that would in his view support the caveat. It is evidence that on one view might have gone to a claim, had it been articulated in the caveat, of an equitable interest in the subject property due to a trust arising from acquisition through pooled funds or due to some form of proprietary estoppel : see Baumgartner v Baumgartner (1987) 164 CLR 137 and Dillwyn v Llewelyn (1862) 4 De G F & J 517, 45 ER 1285, Plimmer v Mayor Wellington (1884) 9 App Cas 699 and New South Wales Trading Club Limted v Glebe Municipal Council (1937) 37 SR (NSW) 288.
20 The evidence advanced by the plaintiff in support of his claim to a caveatable interest included extensive documentation about the leasing arrangements that were entered into over the subject property, the informal building arrangements for the subject property, namely that a company of his, known as Able Benchtops Pty Limited, did much of the building and construction work on the subject property. It does seem from the material advanced by the plaintiff that a case can be mounted that a great deal of work was done by the plaintiff on the subject property and that H & E Developments received the benefit of that work. It is arguable that H & E Developments received not just the plaintiff’s non-financial contributions to the development of the subject property but inevitably, given the nature of the building work done, a degree of financial contribution may arguably inferred was also made. Photographs have been tendered showing Mr Slater working on the site. That is strong prima facie evidence of the work that he actually did there.
21 There is other evidence such as in Exhibit G in relation to the arrangements for sale of other units in the development on the subject property that show that the way agents were advising Mr Slater and his former wife about the sale of the completed units on the subject property indicates that they both had a degree of control over giving the directions for sale. There is evidence in Exhibit F of the work being done by Able Benchtops Pty Limited which would amount to both a financial and non-financial contribution to the property. The financial arrangements evidenced by Exhibit E, which deals with the reimbursement of water rates and Council rates are arrangements from which some inferences could also be drawn that financial contributions were being made by Mr Slater to the outgoings of H & E Developments on the subject property.
22 These are all matters which together with other evidence about the intention of the parties, if an appropriate equitable interest in the land were claimed in the caveat, may have been able to be advanced in support of the claim for such an interest. I have heard this evidence from Mr Slater to attempt to ascertain what kind of estate he says that he claimed through this caveat.
23 The problem that Mr Slater has difficulty in surmounting is that the way that schedule 1 of the caveat is actually framed, it cannot be construed as claiming a present estate or interest of any kind. Rather it is a claim for an estate or interest which has yet to be determined by the Federal Magistrates Court and is wholly dependent upon the making of a decision by that Court in property settlement proceedings under the Family Law Act 1975.
24 In those circumstances the case of the plaintiff fails at this first hurdle. The plaintiff is not able to establish a caveatable interest in the property by reason of this caveat. The appropriate course therefore is not to extend the caveat.
25 In deference to the other submissions put by the defendant I will deal with some of them notwithstanding that the plaintiff’s claim fails on the first issue raised. Mr Wong criticised the plaintiff’s oral evidence that a financial contribution was made by the plaintiff to the acquisition of the subject property through the earlier acquisition of a property the sale proceeds of which were in turn used to acquire the subject property. Despite Mr Wong’s submissions I may have been prepared to find that there was an arguable case that the plaintiff had made a financial contribution to the construction and development of the subject property based on the evidence that I have identified above if that was relevant to a legally recognised claim for a caveatable interest.
26 Mr Wong submitted that there was no claim for final relief made in the proceedings: and that it should therefore be dismissed on that ground. It is true that the summons makes no claim for final relief. To a large extent that is explained in this case by the fact that the plaintiff is unrepresented. That could perhaps have been cured by leave being granted to amend the summons to make a claim for final relief. But that claim would have to be have to be formulated within the compass of the claim for the estate or interest described in schedule 1 of this caveat. There is insufficient information in schedule 1 of the caveat to describe any estate or interest other than the mere claim to a right of action for a declaration of property rights under s 79 of the Family Law Act. It is difficult therefore to see how any claim for final relief could be constructed to support what is in Schedule 1 of the caveat. For that reason it is not necessary to consider whether leave to amend the summons should be granted to cure any defect in the failure of the summons to claim final relief nor any of the issues of the balance of convenience that were raised by the defendant.
27 It follows, therefore, that the plaintiff's summons should be dismissed. Before I make that order I observe that it is highly desirable in the interests of the parties to the property settlement proceedings in the Federal Magistrate’s Court that the proceeds of sale of the subject property be secured in advance of the hearing scheduled for 17 and 18 September 2009. Subject to any argument from Mr Wong, I propose to suspend the making of these orders for a short period of time. It appears that depending on when notice of lapse of the caveat was given to the plaintiff under s74J of the Real Property Act 1900, a matter which I do not have to resolve, the caveat will expire on either 2 or 9 July. There is argument about what is the correct date. The earliest date on which the caveat will expire is 2 July 2009. I am minded to dismiss the plaintiff's claim but I will not do so until some time next week. In the meantime and whilst the caveat is still in force, unless other agreement is reached between the parties, Mr Slater will have the opportunity to make such application as he may be advised to the Federal Magistrate’s Court to secure the position. He could apply for orders in the Federal Magistrate’s Court against H & E Developments Pty Limited for the proceeds of sale to be paid into that Court pending the resolution of the plaintiff’s claim in those proceedings.
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