Holder v Zeiher - [2014] NSWSC 556

Supreme Court

New South Wales

Medium Neutral Citation: Holder v Zeiher [2014] NSWSC 556
Hearing dates: 7 and 14 May 2014
Decision date: 14 May 2014
Jurisdiction: Common Law
Before: Davies J
Decision:
1. The Defence filed 19 November 2013 is struck out.
2. Judgment for the Plaintiff for possession of the land comprised in certificate of title folio identifier 20/805325 known as 18 Namatjira Avenue, Londonderry, New South Wales.
3. Leave to the Plaintiff to issue a writ to enforce the judgment of the Court, such writ not to be executed before Friday 25 July 2014.
4. Unless the Defendant appears before me on 18 July 2014 at 2.00pm to seek a stay based on the state of matters in the Family Court and/or the stage any negotiations have reached for the sale of the property the writ will be executed on 25 July 2014.
5. Liberty to apply on 2 days' notice.

Catchwords: REAL PROPERTY - possession of land - plaintiff is registered proprietor - defendant asserts de facto relationship with plaintiff as a defence - no proceedings taken asserting de facto relationship in Family Court or Federal Circuit Court until proceedings for possession commenced - no application for extension of time when relationship as asserted by defendant terminated more than two years earlier - defendant swore in earlier proceedings that there was no genuine relationship - defence struck out
Legislation Cited: Family Court Rules
Property (Relationships) Act 1984 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Category: Principal judgment
Parties: Mark Christopher Holder (Plaintiff)
Felicity Zeiher (Defendant)
Representation: Counsel:
D Perrignon (Plaintiff)
In person (Defendant)
Solicitors:
Mills Oakley Lawyers (Plaintiff)
In person (Defendant)

File Number(s): 2013/312016

Judgment

The Plaintiff is the registered proprietor of land known as 18 Namatjira Avenue, Londonderry. The Plaintiff asserts in the Statement of Claim that the Defendant has been since May 2010 in possession of the property to the exclusion of the Plaintiff. Despite letters requiring her to vacate she has not done so.

The Plaintiff seeks possession of the land.

On 27 November 2013 the Defendant filed a Defence in these terms:

1. That the Originating Process be set aside as per the Notice of Motion filed by the Defendant.

2. That the Supreme Court is not the appropriate jurisdiction for this matter as there is evidence of a de facto relationship between the Plaintiff and the Defendant between October 2008 and December 2010 during which time the property in question was acquired. Where there is a question of the existence of an eligible de facto relationship, this is required to be determined by a Federal Circuit Court or Family Court as per the Family Law Act.

3. That the Plaintiff has previously filed in the Federal Circuit Court regarding this matter (SYC6099/2012) asking that the Court declare that no de facto relationship existed between the Plaintiff and the Defendant. The Plaintiff amended his Initiating Application including the invoking of cross-vesting the jurisdiction of the Supreme Court for relief through an…

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 Holder v Zeiher

Details

AGLC: Holder v Zeiher [2014] NSWSC 556
Case: [2014] NSWSC 556
Decision Date: 14 May 2014

CaseChat Overview and Summary

The case of Holder v Zeiher involved a dispute over the possession of land, with the plaintiff claiming to be the registered proprietor. The defendant argued that they had a de facto relationship with the plaintiff, which entitled them to a share in the property. The matter was heard in the Supreme Court of Queensland. The defendant's claim was based on an assertion of a de facto relationship, which they did not pursue through the Family Court or Federal Circuit Court until the proceedings for possession were initiated. Despite the relationship's termination over two years prior, the defendant failed to apply for an extension of time to bring the de facto relationship claim.

The primary legal issue before the court was whether the defendant's de facto relationship claim was admissible, given that it was not pursued within the appropriate timeframe. The court had to consider the relevant legislative provisions and the principle that claims must be brought within a reasonable time. Additionally, the court examined the defendant's previous sworn statements denying the existence of any genuine relationship, which undermined the credibility of their current claim. The court was tasked with determining whether the late assertion of the de facto relationship could be considered despite the defendant's earlier denials and the passage of time.

The court found that the defendant's de facto relationship claim was not admissible due to the unreasonable delay in bringing the proceedings. The court held that the legislative provisions required claims to be brought within a reasonable time, and the two-year delay in asserting the de facto relationship was not reasonable. Furthermore, the defendant's earlier sworn statements denying the existence of any genuine relationship were a significant factor in the court's decision. The court ruled that the defence was an abuse of process and struck it out. Consequently, the plaintiff was entitled to possession of the land as the registered proprietor.

The court ordered that the defendant's de facto relationship claim be struck out and that the plaintiff be granted possession of the land. The defendant was not permitted to pursue the de facto relationship claim due to the unreasonable delay and the inconsistency with their earlier sworn statements. The court's decision emphasised the importance of adhering to legislative timeframes and the need for consistency in legal claims.

Orders