Branson & Cramer

[2021] FamCA 93

FAMILY COURT OF AUSTRALIA

Branson & Cramer [2021] FamCA 93

File number(s):	SYC 8560 of 2020
Judgment of:	REES J
Date of judgment:	4 March 2021
Catchwords:	FAMILY LAW – PROPERTY – Interim – Jurisdictional issue as to the existence of a de facto relationship – Applicant seeks orders maintaining the ‘status quo’– Where no abuse of process relating to the Supreme Court proceedings for possession of property was substantiated – Where no “emergent state of affairs which demonstrate a danger to the applicant obtaining relief reasonably sought” was found – Application dismissed.
Cases cited:	Norton & Locke (2013) FLC 93–567
Number of paragraphs:	36
Date of hearing:	2 March 2021
Place:	Sydney
Counsel for the Applicant:	Ms Cohen
Solicitor for the Applicant:	Livingstone & Company Lawyers
Counsel for the Respondent:	Mr Richardson SC
Solicitor for the Respondent:	Broun Abrahams Burreket

ORDERS

SYC 8560 of 2020
BETWEEN:	MR BRANSON Applicant
AND:	MR CRAMER Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	4 MARCH 2021

THE COURT ORDERS:

1.That the application for interim orders contained at Paragraphs 3 and 4 of the Initiating Application filed 27 November 2020 be dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Branson & Cramer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Rees J:

1. In an application filed on 27 November 2020, Mr Branson (“the applicant”) seeks orders relating to the use and occupation of B Street, Suburb C (“the property”) owned by Mr Cramer (“the respondent”), in the following terms:

   ·     That the respondent be restrained from doing anything to remove the Applicant from the property until further Order of the Court or mutual agreement between the parties in writing.

   ·     That during the Applicant’s occupation of the property the Respondent pay mortgage payments; council rates and charges; water rates and charges; strata levies; contents insurance; electricity, telephone and utility costs and reasonable outgoings and repairs.

2. The respondent opposes the making of those orders.

3. In order to give the dispute some context, it is necessary to set out, briefly, the history.

4. The applicant asserts that he and the respondent lived together in a de facto relationship between August 2010 and 6 August 2020. The respondent disputes that assertion.

5. It is not disputed that the applicant moved into the “spare room” in the respondent’s apartment in 2010 and has remained living there.

6. The applicant contends that the relationship ended in August 2020.

7. The respondent moved permanently to a residential aged care facility in December 2020.

8. The primary issue in dispute is the nature of the relationship between the applicant and the respondent.

9. On 21 February 2020 in the Supreme Court, orders were made:

   ·     Declaring that the respondent is incapable of managing his affairs.

   ·     Ordering that Ms D be appointed manager of the respondent’s protected estate, subject to the orders and direction of the NSW Trustee and Guardian (“NSWTAG”).

   ·     Ordering that the respondent’s adult children, Ms E and Mr F, and his solicitor Mr McGirr, be appointed the respondent’s guardians.

10. Ms D caused a letter to be written to the applicant asking him to vacate the property.

11. On 27 November 2020, the applicant filed an application in the Family Court seeking, inter alia, a declaration that he and the respondent had lived in a de facto relationship and that the respondent pay him $4,230,000 by way of property settlement.

12. On the same day, Ms D brought an application in the Supreme Court seeking permission to bring proceedings for an order for the respondent to have sole occupation of the property.

13. On 30 November 2020, the applicant filed a Notice of Motion in the Supreme Court seeking the transfer of the Supreme Court proceedings to the Family Court. In the course of argument, his Honour noted:

    However, when I first asked [counsel for the applicant] about what would happen to [the property], she indicated to me, as I understood her, that [the applicant] did not have long term plans to stay there. In the Family Court proceedings he is claiming a lump sum rather than any interest in [the property] itself.

14. Those applications were heard and determined by Parker J in the Supreme Court and judgment was delivered on 7 December 2020. His Honour directed that Ms D be authorised to commence separate proceedings, by summons to be filed in the Equity Division of the Supreme Court, claiming an order for possession of the property.

15. In those circumstances, I reject the submission of counsel for the applicant that the commencement by Ms D of the Supreme Court proceedings seeking possession of the property constituted an abuse of process.

16. On 7 December 2020, the applicant filed, in the Supreme Court, a Notice of Motion seeking the transfer of the Supreme Court proceedings to the Family Court or, in the alternate, that the Supreme Court proceedings be stayed.

17. On 18 December 2020, Robb J dismissed the Notice of Motion.

18. On 5 February 2021, in the Supreme Court, orders were made granting Ms D an Order for Possession of the property and costs. The issue of a writ for possession was stayed until 19 March 2021.

19. The respondent was a director of 13 companies. Ms D deposed that all but one of the companies are bare trustees. Ms D took steps to remove the respondent as director of each company and for his two guardian children to be appointed in his stead.

20. On 1 March 2021, contracts for sale of the property for a price of $5,000,000 were exchanged. The contract provides for settlement in 90 days. In an email from the selling agent to Ms D, the agent calculated that this sale price represented a record price per square metre for the building. NSWTAG approved the sale.

21. Ms D deposed that the assets of the respondent’s estate are valued at $6,849,000. The available cash component of the assets is $14,160 and there are shares in listed companies valued at $526.

22. Counsel for the applicant, in her Outline of Case Document, asserts that the respondent has interests in companies which own valuable real property. Specifically, counsel for the applicant asserts that the respondent is the appointer of a number of trusts, although not a beneficiary. The assertion that the respondent, as appointor, could add himself as a beneficiary must be rejected in circumstances where the respondent has been declared incapable of managing his own affairs. However, that issue cannot be determined here.

23. The respondent owes $29,817 on a credit card and has a tax debt of $527,687.  The bulk of the estate, according to the evidence of Ms D, consists of the property and a share entitling him to a 50 per cent interest in a second property.

24. Ms D estimates that the respondent’s outgoings are $4,807 per week which includes expenses relating to his care of $2,747. The outgoings on the property, which are met by the respondent, total $460 per week. The tax debt is currently being paid at $410 per week.

25. The applicant’s proposed orders would have the effect that the respondent would continue to pay the outgoings on the property during the applicant’s occupation.

26. Ms D proposes to use the proceeds of sale of the property to finance the costs of the respondent’s care and to pay the tax debt.

    THE LAW

27. Until such time as a Court determines that a de facto relationship existed between the applicant and the respondent, the  power of the Court to make any orders is limited to the circumstances described by the Full Court in Norton & Locke (2013) FLC 93–567 where their Honours stated:

    However, the ambit of relief “preserving the status quo” is limited by the narrow ambit of the power itself and by the narrow jurisdiction within which the power is being exercised.  As a result, the cautionary notes sounded by the authorities in respect of Mareva orders have a direct bearing upon the nature and ambit of interlocutory injunctions of the type under discussion.  In particular:

    a)the preservation of an existing state of affairs (the “status quo”) is not sufficient, of itself, to grant the relief – an injunction is not granted “as of right” when an assertion of jurisdiction and an entitlement to de facto financial relief is sought;

    b)the injunction “…must be necessary to prevent the abuse of the process of the court” (per Wilson and Dawson JJ in Jackson at 617-8) or to “protecting its function as a court” (per Menzies J in Ex parte Bevan; Gibbs CJ in Ex parte Green);

    c)the relief must be required by reference to an emergent state of affairs which demonstrate a clear danger to the applicant obtaining relief reasonably sought.  That is where “…the circumstances point compellingly to a need to preserve the status quo as an interim measure pending a hearing to determine whether interlocutory relief should be granted” (per Wilson and Dawson JJ in Ex parte Green);

    d)the relief should be granted only “ …while the question whether [the court] had jurisdiction remained in doubt” (Ex parte Green);

    e)the questions of fact and law upon which jurisdiction depended would have to be determined as a matter of the “utmost urgency” and “…once it appeared that jurisdiction was lacking, the injunction would have to be dissolved, however inconvenient that course might appear” (Ex parte Green);

    f)the remedy is not to be used so as to “create security for the [applicant] or to require a [respondent] to provide security as a condition of being allowed to defend the action …” (per Deane J in Jackson v Sterling Industries Pty Ltd);

    g)pending a decision as to jurisdiction, regard must be given to the fact that the injunction “…imposes a severe restriction upon a [respondent’s] right to dealt with his or her assets” (per Dixon J in Glover v Walters);

    h)proper regard must be had to the fact that jurisdiction has not been decided and the fact that, consequently, a possible outcome is that no remedy sought by the applicant may be granted. Equally, proper regard must be had to the nature, extent and value of the relief claimed by the applicant in the event that jurisdiction is established;

    i)the remedy, if granted should go no further than that which is required to preserve property in respect of which a danger is established pending determination of the jurisdictional question.

    CONSIDERATION

28. In so far as counsel for the applicant submitted that, in replacing the respondent as a director with two of his guardians, Ms D was disposing of, or alienating, the assets of the respondent, I reject that submission.

29. I am not required to determine whether the respondent derived any beneficial interest from those directorships in circumstances where, whatever benefit he might have gained is now received by his guardians in their fiduciary capacity.

30. There is no evidence, and no assertion on the part of the applicant, that Ms D is likely to use the respondent’s assets other than for his care and support.

31. There is no evidence that the assets of the respondent’s estate are likely to be alienated or dealt with in such a way as to result in there being insufficient funds to meet any claim in which the applicant may succeed.

32. As I have earlier explained, I do not accept that there is any evidence that Ms D has taken any action which could constitute an abuse of process or that an injunction is necessary to prevent her from so doing.

33. There is no evidence which suggests “an emergent state of affairs which demonstrate a clear danger to the applicant obtaining relief reasonably sought”.

34. I am not satisfied that the applicant has demonstrated that it is necessary to make the orders he seeks in order to ensure that his claim for payment of a sum of money is not defeated.

35. Further, in the event that Ms D were restrained from completing the sale of the property as the applicant seeks, it is likely that she would be subject to litigation with the prospective purchaser which would incur costs to the respondent’s estate and open the estate to the possibility of either an order for specific performance or damages. Since the applicant, on his own evidence, has no significant assets and his only income is from a pension, no undertaking as to damages which he might offer would compensate the respondent’s estate for the likely financial consequences of such an order.

36. The application will be dismissed.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       4 March 2021