MACDONALD v FABISH
[2010] SADC 99
•23 July 2010
District Court of South Australia
(Civil: Interlocutory Application)
MACDONALD v FABISH
[2010] SADC 99
Reasons for Decision of His Honour Judge Clayton (ex tempore)
23 July 2010
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - JURISDICTION AND AVAILABILITY OF REMEDY GENERALLY
Interlocutory injunction giving one joint owner of home the exclusive possession of property pending trial of application under Domestic Partners Property Act 1996.
Domestic Partners Property Act 1996 ; Family Law Act 1975 s 114; Domestic Partners Property Act (1996) (NSW) ; District Court Act 1991 s 30, referred to.
Price v Schultz, Duggan J [2008] SASC 34, Full Court [2009] SASC 76, applied.
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, considered.
MACDONALD v FABISH
[2010] SADC 99
This is an action pursuant to the Domestic Partners Property Act 1996. The plaintiff claims orders with respect to the property of herself and the defendant including an order that the defendant transfer to the plaintiff his interest in the former matrimonial home of the parties which is in joint names. Other ancillary orders are sought but I need not concern myself with those at the present time.
The parties were de facto partners and there is no suggestion that the Domestic Partners Property Act has no application in this case.
The de facto partnership ended when the plaintiff left the former matrimonial home. Since that time the defendant has occupied the home together with his current partner. The defendant’s counsel said that the plaintiff voluntarily gave up her right to occupy the premises when she moved out, however she claims to have moved out because of the defendant’s violence. There is a domestic violence order in place. In those circumstances I do not think it is appropriate to suggest that the plaintiff voluntarily gave up her right to vacate the premises.
The property is subject to a mortgage or mortgages which require weekly payments. Since the parties separated the defendant has failed to make many of the required payments and those payments had to be made by the plaintiff to fulfil her obligations as mortgagor. A considerable sum has been paid by the plaintiff towards the mortgages. Notwithstanding that she has apparently incurred a bad credit reputation. The defendant has been making the payments in the recent past and said in an affidavit that he will repay to the plaintiff the payments which she made when he was in default, however there is no current offer for that payment to be made.
In the present application the plaintiff seeks an order restraining the defendant from entering the property. The plaintiff would like to resume living in the property herself. Affidavits filed on behalf of the plaintiff indicate the way in which it would be to her benefit to reside in the property. Those affidavits also assert that she has made a greater financial contribution to the acquisition of the property and the payments pursuant to the mortgage than the defendant.
So far as the present application is concerned it is not my prerogative or role to pre-empt what orders might be made on the final determination of the action. The issue at the present time is simply who should have the right to occupy the premises until the time of the final decision. The action was listed for trial in March of this year but was taken out of the trial list because it was not ready. The defendant was in breach of discovery obligations. No new trial date has been fixed and the parties anticipate a trial in about nine months time.
As joint owners the parties have an equal right to occupy the property. However, if the plaintiff attempted to exercise that right at the moment, there would be a problem with the domestic violence order and there is a risk that the violence which gave rise to the plaintiff leaving the home may resume.
When the matter is finally disposed of either the plaintiff or the defendant could end up with the right to exclusive possession of the property, depending upon the final order of the court. One possibility is that the court could order the transfer of the property to one of the parties with that party making a payment to the other. The court could also order the sale of the property with the proceeds to be disposed of in such ways as the court directs.
The Domestic Partners Property Act makes no provision for interlocutory relief or interim orders. In considering this application the normal criteria for an interlocutory injunction should apply. Mr Birchall referred to the well-known decision of the Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. What can be distilled out of that case for present purposes is relatively simple. The plaintiff on an application for an interlocutory injunction is required to establish that there is a serious question to be tried and that the balance of convenience favours the grant of the injunction. The difficulty in this case is to identify what right the plaintiff claims to enforce. As things stand the plaintiff has no greater right to occupy the property than the defendant. It will not be until a final order has been made that one party or the other may have the right to exclusive occupation of the property.
The Domestic Partners Property Act gives former partners the right to apply to the court for division of property. The court has power upon the application to make such orders as it considers necessary between the domestic partners as to the property of either or both partners in a way that is just and equitable. As I have mentioned, that Act does not provide for interim relief. Specifically, the Act does not provide power to restrain one joint owner from occupying the property. Mr Birchall pointed out that is different from the Family Law Act 1975 and the equivalents of the Domestic Partners Property Act 1996 (NSW) which do enable the court to grant injunctive relief to restrain a former partner from residing in jointly owned premises. He referred to s 114 of the Family Law Act. The South Australian Act does not contain a similar provision. The plaintiff must therefore resort to the general powers of the court.
Mr Birchall referred to s 30 of the District Court Act 1991 which provides that the court may, on such terms as appear just, grant an injunction or make any other order that may be necessary to preserve the subject matter of an action intact until the questions arising in the action have been finally determined. Mr Birchall relied upon the decision of the Full Court in Price v Schultz [2009] SASC 76. That was an appeal from a decision of Duggan J who had heard an appeal from Judge Trenorden.
Both Judge Trenorden and Duggan J held that the plaintiff in that case was entitled to an order of the type which the present plaintiff is seeking in order to avoid circumstances in which harassment or intimidation of the respondent might deter her in ensuring remedies provided by the Domestic Partners Property Act. The Full Court allowed the appeal on the particular facts of that case, however, the principles which were acted upon by Judge Trenorden and Duggan J were accepted by the Full Court.
I was referred to the joint judgment of Gray and Sulan JJ at paras 24 and 26. At para 24 their Honours said:
The District Court has jurisdiction to grant injunctive relief to protect property interests pending the resolution of a dispute in court. Shortly put, it was the plaintiff’s case that she was entitled to reside to the exclusion of the defendant in the Torrensville property and she wished to exercise that right pending the trial. In the present case, the plaintiff has the statutory entitlement to pursue a division of property under the Domestic Partners Property Act 1996 (SA). In our view, the court has the jurisdiction to protect that property right pending trial.
At para 26 their Honours said:
The District Court also has jurisdiction with respect to matters arising under the rubric of the administration of justice. This would appear to be the jurisdiction exercised by the District Court Judge, that is, a jurisdiction based on her finding that the plaintiff would be impeded in pursuing her cause of action through the courts.
In that case both partners had been occupying the premises and the removal of one of the partners was considered necessary to prevent the circumstances in which harassment or intimidation might occur.
As I have observed, in the present case, the parties are joint owners of the property and the plaintiff has the right to return. Mr Birchall argued that if she did that there would be a risk of intimidation or harassment. It is only if the plaintiff did return to the premises that the risk might arise.
Effectively what is sought in this case is an order evicting the defendant from the jointly owned home and giving sole possession to the plaintiff. The question is whether that falls within the scope of s 30 of the District Court Act or whether it is possible by reason of the inherent jurisdiction of the court. As I have said, I should not pre-empt the final decision of the court. It is not for me to say which of the parties has the more substantial interest in the property for the purpose of determining the ultimate issue. I accept the submission of Mr Birchall that the parties could not live in the property together. The fact that there is a domestic violence order appears from para 23 of the plaintiff’s affidavit.
I am satisfied that there is a serious question to be tried.
The plaintiff does have a right to return to the property as a joint proprietor. If she did exercise that right there would be a risk of harassment or intimidation, perhaps something even more than that. The domestic violence order was a consequence of actual violence by the defendant. I do not think that the plaintiff should be prejudiced because she vacated the property as a consequence of the defendant’s violence.
The matter is by no means clear-cut but I think there is a real risk that the defendant may again default with the payments under the mortgage. That is consistent with the history of the matter. It is significant that the defendant has not made good the payments required to remedy his previous defaults. If a further default did occur then the plaintiff, as a mortgagor, would be obliged to make the payments under the mortgage. Because of the risk that the plaintiff may be required to make the payments under the mortgage I think that the balance of convenience favours the plaintiff having the right to reside in the premises to which the payments relate. In my opinion that would be the best way of preserving the property which is the subject of the action. It would be most unfair if the plaintiff was required to meet her obligations as mortgagor while the defendant lived in the property and the plaintiff also had to pay for accommodation elsewhere.
I note what Mr Birchall has said about the balance of convenience. He referred me to a passage in Australian Broadcasting Commission v O’Neill in which Gummow and Hayne JJ referred to Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. In that case Kito, Taylor, Menzies and Owen JJ set out the requirement for an interlocutory injunction on the balance of convenience.
Their Honours said:
The second inquiry is directed to this aspect of the matter. It is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
In my opinion, applying that test, the balance of convenience favours the plaintiff in the present case. I accept what Mr Birchall said. The parties cannot live together, the defendant had made threats to burn the house, the defendant had assaulted the plaintiff in the presence of grandchildren and Mr Birchall referred to a particular incident on 5 July 2008.
I have weighed up the plaintiff’s present circumstances and the defendant’s circumstances and find that the balance of convenience is in favour of the plaintiff. I note that there was a period of 10 months when the defendant failed to pay the mortgage but continued to reside in the premises. There was also a failure to pay council rates, although I have been told that has now been remedied. The benefits to the plaintiff in being able to live in the premises is relevant to the assessment of the balance of convenience and I accept the matters which are set out in para 34(8)(g) of the plaintiff’s affidavit.
There is an additional factor. The delay in determination of these proceedings can be clearly laid at the feet of the defendant. The defendant should not be permitted to benefit from his delay. It would be inappropriate for the defendant to drag out these proceedings while he continued to occupy the premises. So far as the balance is concerned, I apply the test in Beecham and find that the inconvenience to the plaintiff outweighs any injury to the defendant.
An important consideration is the fact that the plaintiff may be required in the future, as she has been in the past, to make payments under the mortgage. As I have said, if that happens, it would be inappropriate for the plaintiff to be put in the position where she had to make payments but at the same time incur the cost of living elsewhere.
Mr Reynolds told me that the defendant wants to stay in the property and that he would like to purchase it. However, he has not made an offer. The order which is sought will not take effect for a month. If the defendant wishes to do something about purchasing the property then he has an opportunity to do that.
For these reasons I am prepared to make the orders sought by the plaintiff. Do you have minutes Mr Birchall?
MR BIRCHALL: No, I apologise, I don’t have any minutes. All I can really refer your Honour to is the orders sought under the interlocutory application. So I apologise for that.
HIS HONOUR: Are you prepared to give one month for the defendant to vacate the premises?
MR BIRCHALL: Are we?
HIS HONOUR: You are, according to this.
MR BIRCHALL: No. Can I refer your Honour to proposed order 3. That was drafted to simply pick a date, obviously not knowing when this matter would be listed and in what month. Your Honour will see the application was filed on 17 June but it wasn’t clear -
HIS HONOUR: That contemplates the defendant will have 28 days before the order takes effect.
MR BIRCHALL: I’m sorry, it does, yes. I misread that, sorry. Could I invite your Honour, perhaps in light of the fact that we have had the hearing and your Honour’s made a determination, it may be appropriate to simply nominate a particular date and time rather than to have -
HIS HONOUR: Yes. One month will be 20 August.
MR REYNOLDS: What day is that?
HIS HONOUR: Friday.
MR REYNOLDS: Probably be appropriate to make it the Monday, to give the weekend, the last weekend for him to move out.
HIS HONOUR: Monday the 23rd.
There will be an order that until further order, or until the final determination of this action, on and from Monday, 23 August 2010 the defendant and his agents be restrained and an injunction be granted restraining the defendant and his agents from entering upon or residing at the premises known as 22 Glenlivet Court, Greenwith in the State of South Australia, being the land and improvements comprised and described in Certificate of Title Register Book Volume 5139 Folio 639.
Secondly, there will be an order that the defendant do pay all mortgage instalments, rates, taxes, emergency service levies, insurance, utilities accounts and other outgoings in respect of the Greenwith property up to and including the relevant date, that is 23 August 2010, and do make good all arrears incurred up to and including 23 August 2010 or such earlier date as the defendant may vacate the property.
Thirdly, there will be an order that the plaintiff do pay all mortgage instalments, rates, taxes, emergency service levies, insurance, utilities accounts and other outgoings in respect of the Greenwith property from the relevant date.
The parties are to have liberty to apply upon 48 hours notice to the other party.
Is there anything else that you require, Mr Birchall?
MR BIRCHALL: I would make an application for costs.
HIS HONOUR: Mr Reynolds?
MR REYNOLDS: I would like to think of a reason to oppose it but I don’t think I can.
HIS HONOUR: There will be an order that the defendant pay the plaintiff’s costs to be taxed.
As I have said, the parties have liberty to apply. If there are any procedural matters that provide difficulty then the parties can come back to court.
I note that no date has been fixed for the trial of this action but one thing that is obvious to me is that while the house has some value neither of the parties are wealthy people. If they are to have a full-blown dispute in this Court a large proportion of the equity in the property would be dissipated in the costs of the action. It is in the interests of both parties to talk, to be reasonable, and to do their best to try and settle the matter.
ADJOURNED 4.13 P.M.
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