Clair v Munce

[2007] NSWSC 419

CITATION:	Clair v Munce [2007] NSWSC 419
HEARING DATE(S):	15 March 2007
JURISDICTION:	Equity Division Duty Judge List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	15 March 2007
DECISION:	Motion to strike out claims for relief dismissed
CATCHWORDS:	DE FACTO RELATIONSHIPS – Relief claimed other than under Property (Relationships) Act – de facto parties are not limited to relief under the Act
LEGISLATION CITED:	(NSW) Conveyancing Act 1919, s 66G (NSW) Property (Relationships) Act 1984, ss 7, 20
CASES CITED:	Forgeard v Shanahan (1994) 35 NSWLR 206 Neilson v Letch (No2) [2006] NSWCA 254
PARTIES:	Janice Margaret Clair (plaintiff) Anthony John Munce (defendant)
FILE NUMBER(S):	SC 4565/06
COUNSEL:	M Tzannes (sol) (plaintiff) M Bloom (defendant)
SOLICITORS:	Antunes Solicitors (plaintiff) Lighthouse Law Group (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

BRERETON J

Thursday, 15 March 2007

4565/06 Janice Margaret Clair v Anthony John Munce

JUDGMENT (ex tempore)

1 HIS HONOUR: By Notice of Motion filed on 6 March 2007 the plaintiff Janice Margaret Clair moves for orders striking out paragraphs 4 - 10 inclusive of a cross-summons filed by the defendant/cross-claimant Anthony John Munce on 26 October 2006. The original Summons claims orders pursuant to (NSW) Conveyancing Act 1919, s 66G, for the appointment of trustees for sale of a property at Prospect. The cross-summons claims orders for the appointment of different trustees for sale of the same property, together with: (4) a declaration that the cross-defendant is indebted to the cross-claimant in the sum of $415,000; (5) orders for the taking of accounts in respect of amounts paid by the cross-claimant since 1 May 2003 by way of mortgage payments and improvements in respect of the land; (6) an order that the cross-defendant pay to the cross-claimant 50 percent of the amount found due on the taking of such accounts; (7) consequential orders for the purposes of valuation; and, alternatively, a declaration that the cross-defendant and the cross-claimant hold the land in trust for the cross-claimant absolutely.

2 The parties were once de facto partners. The present motion is founded on the supposition that the relief claimed in the cross-summons is, or should be, sought pursuant to the (NSW) Property (Relationships) Act 1984, and that time for commencing proceedings under the Property (Relationships) Act without the leave of the Court has expired.

3 This contention is spurious. The cross-summons seeks a declaration as to indebtedness, which is of an existing legal right and involves no alteration of interests under s 20 of the Property (Relationships) Act; and the taking of accounts as between co-owners in respect of improvements and expenditure on outgoings of the property. That such issues can arise on a s 66G application without involving an alteration of property interests is very well established, in numerous decisions of this Court and the Court of Appeal, of which Forgeard v Shanahan (1994) 35 NSWLR 206 and Neilson v Letch (No2) [2006] NSWCA 254 are examples.

4 It is quite clear that the cross-summons does not invoke jurisdiction under the Property (Relationships) Act. It is equally clear that just because parties have been de facto partners does not mean that they are limited to relief under that Act: they can also claim relief at law or in equity. Indeed, Property (Relationships) Act, s 7, specifically provides that nothing in that Act derogates from or affects any right of a party to a domestic relationship to apply for any remedy or relief under any other Act or any other law. If one simply wishes to enforce existing and legal and equitable rights and remedies it is unnecessary to resort to the Property (Relationships) Act for an order altering the existing interests.

5 The application is misconceived. I order that the Notice of Motion be dismissed with costs.

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