Kathleen Reddacliffe v Paul Strickland

[2010] NSWSC 1028

CITATION:	Kathleen Reddacliffe v Paul Strickland [2010] NSWSC 1028 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT OF:	Slattery J at 1
EX TEMPORE JUDGMENT DATE:	9 September 2010
DECISION:	Decline to extend the caveat. Summons dismissed.
CATCHWORDS:	REAL PROPERTY - Torrens title - caveats against dealings - caveator and caveatee were in personal relationship - proceedings in prospect between caveator and caveatee for adjustment of interests in property under Property (Relationships) Act 1984 - proceedings not yet taken - caveat claims interest based on contributions to the acquisition and conservation of the property - no evidence of contributions - merely a claim to exercise a right of action - no caveatable interest - caveat not extended - summons dismissed.
LEGISLATION CITED:	Family Law Act 1975 (Cth) Property (Relationships) Act 1984 Real Property Act, s 74L
CATEGORY:	Principal judgment
CASES CITED:	Beca Development Pty Ltd v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459 Bell v Graham [2000] VSC 142 Bethian Pty Ltd v Green (1977) 3 Fam LR 11,579 Dykstra v Dykstra (1991) 22 NSWLR 556 Ioppolo v Ioppolo (1978) 5 Fam LR N27 Morling v Morling (1992) 16 Fam LR 161
PARTIES:	Applicant-Kathleen Reddacliffe Respondent- Paul Strickland
FILE NUMBER(S):	SC 2010/293964
COUNSEL:	Applicant-In person Respondent-In person

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

SLATTERY

THURSDAY, 9 SEPTEMBER 2010

2010/293964 KATHLEEN REDDACLIFFE v PAUL STRICKLAND

EX TEMPORE JUDGMENT

1 HIS HONOUR: The parties to these proceedings, Kathleen Reddacliffe and Paul Strickland were in a 15 year relationship until they separated on 27 September 2007. Since then they have lived apart. They have been in dispute about issues of the custody of their two children, aged 15 and 9. In the course of their relationship the parties each acquired property. One of the items of property, is the real estate the subject of these proceedings, a domestic property at Lake Illawarra, New South Wales registered in the name of Mr Strickland.

2 Ms Reddacliffe has lodged a caveat on the Lake Illawarra property. Mr Strickland has served a lapsing notice upon her. The caveat expires tomorrow. She has brought proceedings to extend the caveat. I am asked to determine today, in the course of the equity duty list, the rights of the parties in relation to the caveat.

3 A little more background about the proceedings is useful. Neither Ms Reddacliffe nor Mr Strickland is legally represented before me today. I do not say that to be critical of either of them. But it is a fact which has meant that the issues in the case have been addressed from a lay person's point of view rather than with precise focus upon the gathering of evidence and presenting issues for the purposes of making and answering a case for the extension of a caveat.

4 Since the break up of the relationship, both Ms Reddacliffe and Mr Strickland have been engaged in negotiations to resolve their disputes about property. Those negotiations have not resulted in any agreement. I understand there has been a mediation which has not yet been successful. Neither party has yet commenced proceedings in the Family Court of Australia for final property settlement under the Property (Relationships) Act 1984. But that is likely to occur.

5 The affidavit and documentary evidence in the case is extremely sparse. Ms Reddacliffe commenced the proceedings as plaintiff by summons seeking relief simply described as "extension on caveat" and giving the number of the caveat. This Court has a policy of reducing the risk of identity theft in relation to the publication of Court’s judgments. Therefore, I will not include in this judgment the precise details of the caveat or the address of the Lake Illawarra property. Any party legitimately interested in that information can search the court file.

6 In support of her summons, Ms Reddacliffe read an affidavit of her own which is sufficiently short that I can quote in full the whole of the evidence that appears in it. She deposes as follows:

“I would like to extend the function of the caveat, to protecting my entitlement. So I can seek further legal advice. As there has been no proposal for property settlement."

7 When the matter was first called on before me in the duty list this morning Ms Reddacliffe explained the nature of the proceedings and read this affidavit evidence. It became clear that there was no evidence before the Court of the actual caveat which she was seeking to have extended. The matter was stood down so that one or other party could obtain the caveat from the Land Titles Office. A short adjournment was given for that to occur.

8 The caveat was obtained and upon resumption of the proceedings was tendered in evidence without objection. The caveat describes Ms Reddacliffe as the caveator and the registered proprietor of the Lake Illawarra property as Mr Strickland. Schedule 1 of the caveat is completed as to the specification of the "Nature of the estate or interest in the land" being claimed. No other material appears in the first schedule to identify the nature of the instrument or facts relied upon. The nature of the estate or interest in the land claimed is that "the caveator has an equitable interest arising from both financial and non-financial contributions to the acquisition and conservation of the land”.

9 No evidence has been adduced in these proceedings about the any contributions to the acquisition or conservation of the property by either Ms Reddacliffe or Mr Strickland. The Court is left: with an application to extend the caveat claiming an equitable interest arising from the parties’ conduct; with no evidence of that conduct; some agreed information about the general circumstances of the parties’ relationship; and, with the prospect of litigation under the Property (Relationships) Act 1984, s 20.

10 Unless a determination to extend is made, the caveat will expire tomorrow. In the circumstances presented, this case is governed by the following: the equitable interest claimed is one which, in order to be realised can only, as the parties have anticipated, be determined and declared in contested proceedings yet to be commenced in the Family Court of Australia; there is no other evidence before the Court which would substantiate the equitable interest claimed; the form of the estate claimed though not expressly referring to future proceedings, speaks of financial and non-financial contributions in the language of claims under the Property (Relationships) Act 1984.

11 The principles about the extension of caveats in these circumstances are clear. A claim to exercise a right of action for declaration of an estate or interest under the Family Law Act 1975 (Cth) or under the Property Relationships Act is not normally recognised on its own as a caveatable interest: see Bethian Pty Ltd v Green (1977) 3 Fam LR 11,579; Ioppolo v Ioppolo (1978) 5 Fam LR N27; Morling v Morling (1992) 16 Fam LR 161; Dykstra v Dykstra (1991) 22 NSWLR 556; and Bell v Graham [2000] VSC 142.

12 This case bears some similarity to Bell v Graham [2000] VSC 142. In Bell v Graham, a decision of Kellam J in the Supreme Court of Victoria, an application was made to remove a caveat claiming an interest in certain land on the basis of a constructive trust. The caveator claimed in the caveat that the constructive trust accrued “to her during the period of her marriage". The caveator was involved in proceedings under the Family Law Act against the brother of the caveatee. No other evidence was advanced in Bell v Graham supporting the trust so claimed, nor was it the subject of detailed submissions to Kellam J. That was also the case before me, making it difficult to consider the application of Real Property Act, s 74L by disregarding strict compliance with the act on the basis of the existing evidence of a caveatable interest: cf Beca Development Pty Ltd v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459 at 471- 472. Justice Kellam in Bell v Graham observed that it appeared to have been assumed on behalf of the plaintiff in that case that merely making a claim in the Family Court of Australia may entitle her to claim an interest in the land. It is clear, as Bell v Graham states, that merely to prove or establish a relationship either of marriage or a de facto relationship, does not of itself create an interest in real estate. The question as to whether or not a spouse or partner has a caveatable interest must be decided in accordance with the law applied under either the Family Law Act or the Property Relationships Act. In this case the parties have not yet even commenced such an action. In Bell v Graham and cases like it caveats have not been extended or have been removed, in such circumstances. That, in my view, is what must occur here.

13 The course that I propose therefore is to decline the relief sought in the summons to extend the caveat. That means that the caveat will run out tomorrow. The Summons will be dismissed.

14 Before finishing this judgment, I wish to make several observations. The first is that it is clear to me from what Ms Reddacliffe and Mr Strickland have said in the course of submissions that there are still unresolved issues between them in relation to the settlement of property arising out of their relationship. It is important that one or other of them commences proceedings for resolution of those disputes. Both parties seem to have an entitlement to commence proceedings to resolve those disputes. I wish to stress the importance of the parties resolving their dispute in the appropriate jurisdiction and to do so as soon as possible.

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16/09/2010 - Typographical error - Paragraph(s) Category Type changed from 'Procedural and other rulings' to'Principal Judgment' on coversheet