CA v RWS (No 2) - [2020] NSWSC 1538

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: CA v RWS (No 2) [2020] NSWSC 1538
Hearing dates: 21 July 2020 and on the papers
Date of orders: 24 November 2020
Decision date: 02 November 2020
Jurisdiction: Equity
Before: Robb J
Decision:
See pars [95], [128], [166] and [186]. See pars [191] and [192] regarding the short minutes that are to be provided.

Catchwords:
FAMILY LAW — Property — Procedure — where, after an initial interlocutory judgment, several issues remained outstanding — where the Court sought further information in order to make interim maintenance orders — where the parties raised additional issues not contemplated in the first judgment –– where the effects of the COVID-19 pandemic on the right to terminate a lease considered — other issues raising no points of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Family Law Act 1975 (Cth)
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Amendment (COVID-19) Regulation 2020
Residential Tenancies Amendment (COVID-19) (No 2) Regulation 2020
Residential Tenancies Regulation 2019
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
CA v RWS [2020] NSWSC 163
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82

Category: Consequential orders
Parties: CA (plaintiff / applicant)
RWS(first defendant / first respondent)
NS(second defendant / second respondent)
PWS(third defendant)
Representation:
Counsel: BL Jones (plaintiff / applicant)
S O’Ryan QC (first defendant / first respondent)
A Lim (sol) (second defendant / second respondent)
P Dunn (sol) (third defendant)
Solicitors: Meyer Pigdon (plaintiff / applicant)
Broun Abrahams Burreket (first defendant / first respondent)
ALP Lawyers (second defendant / second respondent)
Dentons (third defendant)

File Number(s): 2019 / 339364

Judgment

On 3 March 2020, I delivered the initial reasons for judgment in these proceedings: CA v RWS [2020] NSWSC 163 (the principal judgment).
In these reasons, I will assume knowledge of the principal judgment, and will use the same terms as were used in that judgment including the relevant level of anonymisation. Parenthetical references to paragraph numbers are to the paragraphs of the principal judgment.

The principal judgment

The principal judgment dealt with an application by the wife for interim relief under the Family Law Act 1975 (Cth) against the husband, the husband's brother and the husband's father. The application for interim relief was heard in this Court, because the Family Court of Australia (the Family Court) had made an order transferring the proceedings to this Court, so that they could be heard with other proceedings pending in this Court that involved certain related issues: see [6], [7] and [28] to [37].
As recorded at [210], I declined to make the order sought by the wife giving her exclusive interim possession of the Vaucluse Property. The registered proprietors of that property are the husband and the brother. Particularly at [131] and [132], I noted that there was a dispute between the parties as to the value of the Vaucluse Property; the wife claiming that it was worth $6 million and the husband claiming it was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CA v RWS (No 2)

Details

AGLC: CA v RWS (No 2) [2020] NSWSC 1538
Case: [2020] NSWSC 1538
Decision Date: 02 November 2020

CaseChat Overview and Summary

In this case, the Crown sought to recover unpaid maintenance payments from the respondent. The matter was before the Family Court of Australia. The initial interlocutory judgment had been made in 2019, but several issues remained outstanding. The Court sought further information in order to make interim maintenance orders. The parties raised additional issues not contemplated in the first judgment. The effects of the COVID-19 pandemic on the right to terminate a lease were considered, as were other issues that raised no points of principle.

The legal issues before the Court involved the ability to terminate a lease due to the effects of the COVID-19 pandemic, and the capacity to raise new issues in the context of an interlocutory judgment. The Court was required to determine whether the respondent had been able to terminate the lease due to the pandemic and whether the parties could raise new issues in the interlocutory proceedings. The Court also needed to decide whether the issues raised were points of principle or merely procedural matters.

The Court held that the effects of the COVID-19 pandemic did not provide a basis for terminating a lease, and that the respondent had not demonstrated any hardship that would justify such a termination. The Court also found that the parties were not able to raise new issues in the interlocutory proceedings, as this would have caused unnecessary delay and expense. The Court concluded that the issues raised did not involve any points of principle, but were rather procedural matters that could be dealt with in the final judgment.

The Court ordered that the respondent pay the outstanding maintenance payments to the applicant, and that the respondent bear their own costs of the proceeding. The Court also directed that the outstanding issues be determined in the final judgment.

Orders