Majak v Rose

[2021] NSWSC 292

Supreme Court

New South Wales

Medium Neutral Citation:

Majak v Rose [2021] NSWSC 292

Hearing dates:

10 December 2020

Date of orders:

29 March 2021

Decision date:

29 March 2021

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Dismiss the plaintiff’s notice of motion filed 27 August 2020.

(2) Leave is given to the plaintiff to serve on the defendant’s solicitors any proposed further amended statement of claim on or before 26 April 2021.

(3) Stand over the proceedings and the defendant’s notice of motion filed 9 July 2021 for further directions on 30 April 2021.

(4) The plaintiff is to pay the defendant’s costs of the plaintiff’s notice of motion.

Catchwords:

CIVIL PROCEDURE – amendment – application for leave to amend statement of claim – proposed claim concerns financial matters between parties to a de facto relationship – where claims made relate to compliance with Family Court orders – Family Court has jurisdiction to deal with matters – where regardless plaintiff is estopped from raising proposed claim – unreasonable not to raise proposed claim in Family Court proceedings – where claims are statute-barred barred – where plaintiff self-represented – notice of motion dismissed – leave given to serve proposed further amended statement of claim

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 140

Family Law Act 1975 (Cth) ss 4, 90RC

Home Building Act 1989 (NSW) ss 3B, 18E

Uniform Civil Procedure Rules 2005 (NSW) r 36.15

Cases Cited:

Byrnes v Majak [2020] NSWSC 906

Champerslife Pty Limited v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33

Massalski & Riley [2019] FamCA 1013

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Zofia Bozena Majak (Plaintiff)
Alan Wesley Rose (Defendant)
Russell Craig Byrnes (Former First Defendant in Supreme Court proceedings)
Matthew Byrnes (Former Third Defendant in Supreme Court proceedings)
Marc Anthony Riviere trading as Riviere Law (First Defendant in District Court proceedings)

Representation:

Counsel:
Self-represented (Plaintiff)
M Klooster (Defendant)
G Ng (Amicus curiae for the former First & Third Defendants in Supreme Court proceedings)
D Collins (First Defendant in District Court proceedings)

Solicitors:
Self-represented (Plaintiff)
Byrnes Legal (Defendant)
YPOL Lawyers (Former First & Third Defendants in Supreme Court proceedings)
Mullane & Lindsay (First Defendant in District Court proceedings)

File Number(s):

2019/400687

Publication restriction:

Nil

Judgment

1. The plaintiff and the defendant, Alan Rose, were at one time in a de facto relationship. They jointly owned a property in Bangalow Street, Ettalong, on which were constructed two residential units. The relationship ended, and a dispute over the division of property ensued. This was principally litigated in the Family Court of Australia and in the present proceedings in this Court.

2. The plaintiff commenced proceedings in this Court by filing a statement of claim on 20 December 2019. She named as defendants, Russell Byrnes who had been the principal solicitor for Mr Rose in the Family Court proceedings as the first defendant, Mr Rose as the second defendant, and Mr Russell Byrnes’ son Matthew, also a solicitor who assisted his father in acting for Mr Rose.

3. On 21 February 2020 the Registrar ordered that the statement of claim be struck out with liberty to re-plead. An amended statement of claim was filed on 23 March 2020. It sought declarations and damages in relation to an apprehended violence order that had been taken out against the plaintiff by the second and third defendants.

4. Mr Rose and his new de facto partner had sought an apprehended violence order against the plaintiff on 12 February 2014. Another solicitor, a Mr Rivere, acted for Mr Rose in those proceedings. The application was consented to by the plaintiff on a without admissions basis and was later extended on a contested basis.

5. The plaintiff had earlier commenced proceedings in the District Court naming as defendants, Mr Rivere, Mr Rose and his de facto partner Miss Reberio. On 26 March 2020 the plaintiff filed an amended statement of claim in the District Court seeking damages on the basis that the application for the AVO was an abuse of process. Procedural directions have been made in the District Court proceedings, and they are effectively on hold until a notice of motion filed in this Court by Mr Rose, mentioned below, is resolved.

6. On 25 June 2020 Rothman J dismissed the Supreme Court proceedings as against Russell Byrnes and Matthew Byrnes: Byrnes v Majak [2020] NSWSC 906. On 10 July 2020 the plaintiff was given leave by the Registrar to serve any proposed amended statement of claim on Mr Rose by 31 July 2020.

7. On 9 July 2020 Mr Rose filed a notice of motion in this Court, seeking an order pursuant to s 140 of the Civil Procedure Act 2005 (NSW) that the proceedings in the District Court be transferred into this Court and be consolidated with the proceedings in this Court. The basis for that motion is that the issues raised in the District Court proceedings are largely the same as those raised in the proceedings in this Court, namely, claims by the plaintiff arising out of the AVO which was made against her in 2014. It is fair to observe that, in filing that motion, Mr Rose and his solicitors assumed that the proposed further amended statement of claim would repeat the matters pleaded against him in the amended statement of claim that was dealt with by Rothman J on 25 June 2020. It should be noted in that regard that Rothman J’s orders did not affect the pleading against Mr Rose, to the extent at least that it could be unravelled from the claims made against the Messrs Byrnes.

8. On 27 August 2020 the plaintiff filed a notice of motion seeking leave to file a further amended statement of claim (“the proposed claim”) in the form of a document which had been wrongly filed by her on 2 August 2020. The proposed claim pleaded a fundamentally different claim against Mr Rose, and it did not include matters arising from the application for the AVO. Rather, the proposed claim pleaded matters concerned with the Ettalong property, which had been the subject of the Family Court proceedings. Mr Rose was the owner/builder in respect of that property.

9. This judgment concerns the plaintiff’s motion for leave to amend her statement of claim in this Court, and Mr Rose’s motion to transfer the District Court proceedings to this Court.

10. At the outset of the hearing, the plaintiff sought leave to amend her notice of motion to seek an order pursuant to r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) setting aside Rothman J’s judgment. I refused that application. My reasons may be briefly stated. First, Rothman J’s judgment was given on 25 June 2020. That was more than five months before the present hearing. No explanation was provided for the delay. Secondly, no proposed amended notice of motion was available. Thirdly, there was no affidavit setting out any basis for the application, specifically, whether it was asserted that the judgment was entered irregularly, illegally or against good faith.

11. As noted earlier, the plaintiff’s proposed claim pleads a fundamentally different case against Mr Rose from what had been alleged in the amended statement of claim. The case as previously pleaded sought declarations and damages based on what was said to be an abuse of process for the defendant seeking an AVO against the plaintiff. The proposed claim seeks damages for loss and damage said to have been suffered by the plaintiff in respect of unfinished building works and defective building works that were being carried out by the defendant at the property in Bangalow Street, Ettalong.

12. Mr Rose submitted that leave should not be given to the plaintiff to amend in the way she seeks, principally because the claims that she seeks to make arise out of the proceedings which were before the Family Court, and were the subject of a judgment of the Family Court: sub nom Massalski & Riley [2019] FamCA 1013. Mr Rose submitted further that, if these matters were not effectively already determined by the Family Court, they were matters which ought to have been raised in the property proceedings, and that an Anshun estoppel operated to prevent the plaintiff from raising them now in new proceedings.

13. Mr Rose submitted, alternatively, that the claims were effectively statutory warranty claims under the Home Building Act 1989 (NSW) (HBA) and that the limitation period had expired for the bringing of the proceedings because more than seven years had elapsed since the works were completed. To the extent that the claims relied on breach of contract or negligence, Mr Rose submitted that they were similarly statute-barred because more than six years had elapsed since any breach or since the discoverability of any defects in the building work.

14. On 24 December 2019 the Family Court made the following orders after a contested hearing:

(1)   The proceedings in the Supreme Court of Victoria, case number SCI 201605260, are dismissed with the question of costs reserved.

(2)   That within 14 days, the Applicant forthwith sign all documents and do all things necessary to cause all caveats she has lodged over property known as and situated at 1 Geofrey Street and 17 Helen Street, Frankston in the State of Victoria (“the Frankston property”) and property known as and situated at 29 Bangalow Street, Ettalong, being the land in folio identifier 190/10057 ("the Bangalow Street property”) to be withdrawn.

(3)   The parties are to expeditiously do all acts and things and sign all documents required to complete the registration of the proposed strata plan and associated dealings of the Bangalow Street property.

(4)   For the purposes of Order (3), the Applicant is to execute the following documents and return those documents properly executed and witnessed as is required by each document, to the solicitor for the Respondent, within 14 days of the date of delivery of those documents to the Applicant's solicitor.

a.   Any application form(s) and any other forms or documents required by the Central Coast Council to complete the approval of the proposed strata plan of the Bangalow Street property;

b.   The Strata Plan Administration Sheet and Strata Plan;

c.   Any authority required by the Commonwealth Bank of Australia to produce the Folio Identifier at the LPI NSW; and

d.   Such other document or documents as may be provided by the Respondent to the Applicant which is. or are, reasonably required to enable the registration of the strata plan.

(5)   Within 28 days of registration of the strata plan for the Bangalow Street property, the parties are to do all acts and things and sign all documents required to effect the following:

a.   Authorise the Commonwealth Bank of Australia to discharge the mortgage, registration number AF128865, secured over Lot 1 as shown on the Strata Plan, being the Lot at the front of the property ("Lot 1"), and to secure the debt then owing to the Commonwealth Bank of Australia by a mortgage secured over Lot 2 as shown on the Strata Plan, being the lot at the rear of the property ("Lot 2"); and

b.   To hold a meeting of the Strata Committee of the Strata Plan (by proxy if preferred) to pass the necessary resolutions as required by the Strata Schemes Management Act 2015 (NSW).

(6)   The parties are to each pay one half of the costs and fees payable in respect to the preparation of the registration of the Strata Plan and associated documents, except for, any fees payable to the Commonwealth Bank of Australia which shall be the sole responsibility of the Respondent.

(7)   That within 14 days of the registration of the strata plan, the Applicant prepare a transfer in registrable form by which the Respondent transfers ail of his right, title and interest in Lot 1 in the proposed strata plan to the Applicant and deliver such document to the solicitor for the Respondent.

(8)   That within 7 days of receipt of such transfer, the Respondent sign such document and exchange it for the transfer to be signed by the Applicant.

(9)   That within 14 days of the registration of the strata plan, the Respondent prepare a transfer in registrable form by which the Applicant transfers all of her right, title and interest in Lot 2 in the proposed strata plan to the Respondent and deliver such document to the solicitor for the Applicant.

(10)   That within seven (7) days of receipt of such transfer, the Applicant sign such document and exchange it for the transfer signed by the Respondent.

(11)   Within 14 days of the Applicant complying with her obligations pursuant to these Orders, the Respondent is to pay to the Applicant the sum of $18,263.50.

(12)   That other than as provided in these Orders, each party against the other party shall be entitled to:

a.   Any items of personalty, chattels, goods, furnishings, bank accounts, motor vehicles and/or other property, at the date of these Orders, in each party’s’ name, possession and control, respectively;

b.   Any moneys, shares, debentures, superannuation and/or employment entitlements which stand in each party's sole name, possession and control, respectively.

(13)   That each party keep the other indemnified in relation to any liability in their sole name.

(14)   That each party forthwith do all acts and things and sign all documents, deeds or instruments necessary to give effect to these Orders.

(15) That if either party refuses or neglects to sign or execute any document, instrument or writing after seven (7) days of being required to do so, each party consents to any application filed by the other party seeking Orders, pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”), that a Registrar of the Family Court of Australia at Sydney be empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to these orders.

(16) That in the default of any party doing any act or things and executing such document necessary to give effect to these Orders, the Registrar of the Family Court of Australia at Sydney be appointed pursuant to s 106A of the Act to execute all such documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to such documents and the defaulting party shall pay the costs of the non-defaulting party in relation thereto.

(17)   That each party have liberty to apply in relation to the implementation of these Orders on giving the other party and the Court not less than seven (7) days' notice in writing.

(18)   The parties have liberty to apply in respect to the question of costs.

15. The plaintiff pleads her proposed claim as follows:

1.   The Plaintiff submits a second Amended Statement of Claim, changing the cause of action in result of the change of circumstances that occurred from the time when this statement of claim was filed in December 2019.

2.   The Plaintiff owns real property at 29 Bangalow Street. Ettalong Beach together with the Defendant as tenants in common.

3.   There (sic) property consists of two (2) units in a dual occupancy development, which are not subdivided in consequence of the Defendant:

a.   repudiating his duty of an owner builder and failing to complete the building works:

b.   failing to do all things necessary to complete building works and subdivide the property;

c.   failing to rectify building defects.

4.   The Plaintiff suffered loss and damage to the property by reason of:

a.   building defect resulting with water leaking through the balcony into the garage of the front unit;

b.   unfinished building works;

c.   having the equity invested in the property detained by the Defendant's loan;

d.   not being able to realise her asset.

5.   The Defendant was named as a defendant in certain Family Court proceedings numbered SYC 496/2015 before the Family Court of Australia.

6.   After commencement of the proceeding in this Court, the Family Court on 24 Dec 2019, delivered a judgment in relation to the property settlement between the parties.

7.   The first amendment to the statement of claim in this Court, was made before it was known to the Plaintiff what will be the effect of the Defendant failing to complete all construction works and do all things necessary to subdivide the property at 29 Bangalow Street.

8.   In consequence of change of the parties to this proceeding and new issues arising in out of the Family Court orders in relation to the subdivision of the property at 29 Bangalow Street, the Plaintiff is now changing the cause of action in this proceeding.

The Plaintiff relies on the following facts and assertions: -

9.   The Defendant. Alan Wesley Rose is the common law Spouse of the Plaintiff, those parties having separated in about October 2013.

10.   The Plaintiff and the Defendant own a property at 29 Bangalow Street as tenants in common,

11.   The property was purchased by the parties in April 2008 for the sum of $330,000.

12.   The Plaintiff and the Defendant paid clear funds for the purchase of the property in equal shares and registered the title to the property as tenants in common in equal shares.

13.   The property at the time of purchase consisted of a dilapidating fibro/weatherboard cottage which was not suitable for occupation.

14.   There was a verbal agreement made between the parties at the time of purchase of the property at 29 Bangalow Street, expressing the following intentions:

a.   that the property will be developed and 2 (two) home units ("Ettalong units") built and registered with separate titles under a strata plan;

b.   that each party will provide clear funds in equal shares to pay for their share of the construction;

c.   that the Defendant will be acting as an owner builder;

d.   that the parties will co-operate in the doing of all acts which are necessary to the performance by the parties of fundamental obligations to quickly complete the construction;

e.   that the parties will communicate with each other when obtaining quotes and organising building works, to deal efficiently with ail issues and all requirements necessary to complete the construction to a high quality standard:

f.   that the parties will be getting equal benefits from the use of the constructed dwellings:

g. that the parties will leave a debt-free lifestyle.

15.   On 23 Jan 2008. the development application 36045/2008 was approved by the Gosford City Council on the following terms:

a.   the consent to lapse in five (5) years from date of consent:

b.   total contributions of $16,907.00 are payable under Sec 94 of the Environment Planning Assessment Act 1979 prior to the issue of an Occupation Certificate;

c. all building work must be carried out in accordance with the provision of the Building Code of Australia:

d.   prior to the issue of a Construction Certificate, a refundable security deposit of $3,000 shall be paid into Council’s trust fund to cover the cost of repairing damage cause as a result of the development.

16.   The construction of the Ettalong units commenced in around June 2009.

17.   The front unit was finished in December 2009 and Plaintiff moved together with the Defendant to the unit, before occupation certificate was issued, while there were still the following works that had to be done:

a.   painting and fitting off to the rear unit

b.   fences

c.   landscaping

d.   kerbs & gutters

e.   asphalt reinforcement to the road at the front and to the back-lane

18.   At all material times, since around June 2009, the Defendant carried out the function of the owner-builder under a licence issued by a training institution approved by the NSW Office of Fair Trading.

19.   The occupation certificate was obtained by the Plaintiff in December 2014, after the DA expired.

20.   The property hasn't been subdivided yet.

21.   The following works haven't been completed yet:

a.   dividing fence between the units:

b.   painting of the side and front fence.

Non-performance of the promises and statutory obligations

22.   The Defendant benefited under the agreement made with the Plaintiff at the time of buying the land at 29 Bangalow Street, while he did not perform his fundamental obligations towards the Plaintiff.

PARTICULARS

(a)   failed to complete all construction works:

(b)   prevented the Plaintiff from realising her asset:

(c)   detained Plaintiff’s assets by getting a loan mortgaged against the property for his benefit:

(d)   excluded the Plaintiff from the income that he generated bv offering one of the dwellings as an accommodation to his father. Oswald Rose before:

(i)   the property was finished:

(ii)   occupation certificate was issued:

(e)   excluded the Plaintiff from her share of the security deposit of 33,200 refunded by the Gosford City Council according to the terms of the development application.

23. The offering of accommodation to Oswald Rose who was 90 years of age, prevented construction of the dividing fence between the units because:

a.   the rear unit where the father lived was accessed by the back door:

b.   the erection of the dividing fence in the middle of the courtyard between the units, would restrict access to the rear unit by back door in case of emergencies.

24.   The non-compliance with the early promises and intentions and excluding the Plaintiff from the benefits derived by the Defendant, imposed a duty on the Defendant to:

a.   co-operate with the Plaintiff to mitigate any losses that were suffered by the Plaintiff as a consequence of non-performance of Defendant's obligations as an owner builder and as a co-owner of the property;

b.   to repair the wrong that was done to the Plaintiff by the Defendant causing her to be unjustly disentitled to:

(i)   controlling her asset, and

(ii)   receiving benefits from her investment:

25.   In consequence of the Defendant not complying with his duty imposed as a result of deriving of benefits, while causing losses to the Plaintiff, the Plaintiff was forced to seek Family Court intervention to get orders for property settlement.

26.   The property settlement orders of the Family Court from 24 Dec 2019, could not be performed because:

a. The Defendant failed to subdivide the property, acting;

(i)   in breach of implied duty to co-operate to complete all construction works and to register a strata plan to enable partitioning of the properties:

(ii)   in breach of his Undertaking given to the Plaintiff in the AVO proceedings.

PARTICULARS

In around January 2014. the Plaintiff filed an ADVO application against the Defendant. During the hearing in the Local Court in Gosford on 12 June 2014, the Plaintiff withdrew her application in exchange for an Undertaking from the Defendant who promised to complete all building works on projects between the parties as expediently as possible.

27.   In consequence of the defendant not-complying with his implied duty to co-operate and duty to the Court to comply with his Undertaking, the Family Court orders can't be performed and the Plaintiff was forced to file an appeal against such orders.

Damage due to the rainwater seeping through the balcony to the ceiling in the garage

28.   In around April 2016, after a season of heavy rains, the rainwater that was pooling on the balcony of the front unit of the property at 29 Bangalow Street, seeped into the ceiling space in the garage causing a leak into the garage.

29.   As a result of the leak, a mould started to grow on the plaster cornices and subsequently the cornices got detached and fell off the ceiling.

30.   The Plaintiff sent numerous emails with the photos showing the damage, to the solicitor acting for the Defendant, Russell Byrnes requesting that the Defendant attends to rectification of what appeared to be a failure of the waterproofing system.

Failure to co-operate and to communicate

31.   The Defendant failed to communicate in a reasonable manner when the Plaintiff tried to organise time for him to inspect the property to discuss the options for dealing with rectification of the damage.

32.   The Defendant refused to inspect the damage or take any action to organise repairs to the leaking balcony.

33.   The Defendant failed to cooperate in mitigating the loss, when he had the option to seek the rectification of the damage to be done by the waterproofing company that provided the service which should have been protected by a warranty.

Duty of care

34.   At all material times from or around June 2009. the Defendant:

a.   was one of the registered owners of the land at 29 Bangalow Street and was an owner-builder registered on the construction certificate issued by the Gosford City Council:

b.   had the ultimate responsibility for:

(i)   all activities associated with construction, council and engineer's inspections and maintenance of the building to prevent damages and any loss, direct and consequential to any defective workmanship or material used;

(ii)   co-operating with the Plaintiff, as a second owner of the property, in the doing of acts which are necessary to the performance by the parties or by one of the parties of fundamental obligations under the agreement made prior to commencement of the construction.

(iii)   obtaining occupancy certificate:

(iv)   obtaining building insurance:

(v)   obtaining warranties from the tradesmen for services such as waterproofing of the balconies.

c.   had a duty of care arising from a risk of any defective works or consequential damage or loss to the property.

35.   In consequence of his duty of care which arose in effect of the Defendant accepting a responsibility of being an owner builder, the Defendant has a continuous responsibility for carrying out any rectification of building defects.

36.   It was a duty of the Defendant as an owner builder to investigate the reason for the damage that occurred and to take all necessary action to prevent further damage.

37.   Failure to mitigate the cost of rectification of the damage when the waterproofing was under a warranty resulting from breach of duty of care, provides a ground for the Plaintiff to seek orders that the Plaintiff himself pays the full cost of the rectification of the damage resulting from the failure of the waterproofing system.

38.   At all material times, the Defendant knew or should have known that the continuous leaking of water through the balcony into the garage created a risk of:

a.   Damage to the property

b.   Loss of potential for use of the property

c.   Personal loss and injury to the Plaintiff

Particulars

The risk of harm arose because:

(i)   the mould growing on the ceiling creates a health hazard to the occupiers of the property:

(ii)    the plaintiff is bound to live in the property, being restricted from renting it out until the damage is rectified:

39.   At all material times, the Plaintiff:

a.   had no practicable (sic) ability to prevent and minimise the damage;

b.   was vulnerable to the impact or effects of rain; and consequently

c.   was dependent for protection of her interest in the property, upon the Defendant acting reasonably and communicating with the Plaintiff and with the tradesmen;

d.   had no capacity to engage the Defendant in co-operating in dealing with the issue;

e.   had no right to undertake any works in relation to the property without cooperation of the Defendant, because:

(i)   was a duty of the Defendant, as an owner-builder to make a claim under a warranty, if the damage was caused by wrong waterproofing solution or inappropriate application of the product.

f.   had no funds to pay for any rectification works, having all her funds that she invested in the property detained by the Defendant's loan which is mortgaged against the equity that the Plaintiff holds in the property.

40.   As a result of matters pleaded in paragraphs 14 to 38 above (separately or in combination, the Defendant, at the material times owed a duty of care to the Plaintiff to exercise reasonable care against damage or mitigation of cost of repair of the damage to the property and possibility of the materialisation of the Risk of Harm (Duty of Care).

Breach

41.   At all material times, the risk of harm was:

a)   Foreseeable to the Defendant; and

b)   Not insignificant, and

c)   Subject to mitigation by making a claim under a warranty. 

It is a common knowledge, that:

Particulars

(i)   any outside area of the building open to the elements will get wet and incorrect waterproofing will allow water to get straight into the building through the open pores or cracks;

(ii)   the waterproofing must be done according to the Australian standards and the works must be protected by warranties;

42.   Subsequently, if the Defendant acted reasonably, he:

a.   would have had a warranty for the waterproofing works:

b.   would have communicated with the waterproofing company to organise inspection immediately after the water started to leak through the balcony;

c.   would have been available to recoup the cost related to repair of the damage under a warranty.

d.   the damage might have been repaired by the waterproofing company at their cost.

43. In consequence of the Defendant not acting in a reasonable and responsible manner, the Plaintiff accrued entitlement to damages for defective work accrued when the defective work was done.

44. The Plaintiff is now is (sic) entitled to recover the cost of rectifying the defective works and the cost of completing any unfinished works.

16. It is apparent from the pleading that the matters about which the plaintiff now complains arise from what was litigated before the Family Court and is governed by the orders of that Court. The plaintiff refers in paragraphs 5 and 6 to the commencement of the Family Court proceedings and the judgment delivered in relation to the property settlement. Significantly, paragraph 8 says that the plaintiff is changing her cause of action in this Court as a result of “new issues arising in out of (sic) the Family Court orders in relation to the subdivision of the property at 29 Bangalow Street”.

17. Paragraph 25 pleads that, in consequence of the defendant not complying with what were described as his promises and statutory obligations, the plaintiff was forced to seek Family Court intervention to get orders for property settlement. Paragraph 26 pleads that the property settlement orders could not be performed because the defendant failed to subdivide the property because he did not complete all of the construction works and register the strata plan. Paragraph 27 pleads that the Family Court orders could not be performed because the defendant had not complied with his duty to cooperate and his duty to comply with an undertaking he gave to the Local Court on 12 June 2014.

18. Prayer 4 in the proposed claim seeks that the defendant be restrained from seeking recovery or enforcement of costs orders against the plaintiff. The plaintiff informed me that those costs at least included costs ordered in the Family Court.

19. Order 17 of the Family Court orders gave liberty to the parties to apply “in relation to the implementation of these orders”.

20. The plaintiff relied on the fact that part of her claim relies in paragraph 26 on an undertaking said to have been given by Mr Rose in the Local Court to complete the building. She submitted that such an undertaking could not be enforced in the Family Court. However, the substance of her claim is that the Family Court orders cannot be perfected until the building work is completed. It is only the Family Court which can deal with that issue, regardless of any undertakings given elsewhere. The problem is not an undertaking inconsistent with the parties’ obligations under the Family Court orders, which might give rise to different considerations.

21. It is apparent, therefore, that the claims which the plaintiff makes, relate to compliance with orders made by the Family Court. In any event, s 90RC(2) of the Family Law Act 1975 (Cth) provides:

(2) Parliament intends that the de facto financial provisions are to apply to the exclusion of any law of a State or Territory to the extent that the law:

(a) deals with financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and

(b) deals with those matters by referring expressly to de facto relationships (regardless of how the State or Territory law describes those relationships).

The definition of financial matters in s 4 includes property of the parties.

22. Given that the Family Court obviously has jurisdiction to deal with the matters, even if this Court had its own jurisdiction, it would necessarily refuse to exercise that jurisdiction in the light of the Family Court orders. The issues raised in the proposed claim concern financial matters between the parties to a de facto relationship. That is no doubt why the orders made deal with the registration of the strata plan and the subdivision of the Ettalong property.

23. If I am wrong in holding that the proposed claim relates to compliance with the Family Court orders, I consider that the plaintiff is estopped from raising it in these proceedings because it was so relevant to the matters that had to be decided in the Family Court proceedings, that it was unreasonable of the plaintiff not to have raised it in the Family Court proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602; Champerslife Pty Limited v Manojlovski (2009) 75 NSWLR 245; [2010] NSWCA 33 at [3] and [41]. The proposed claim is that the defects and incomplete work are preventing the registration of the strata plan and the subdivision of the property. Where the Family Court made orders about those matters, it was unreasonable of the plaintiff not to have raised those issues or claims in the Family Court proceedings.

24. Even if, contrary to what I have found, this Court has jurisdiction, the claims are statute-barred. The proposed claim alleges a breach of statutory warranties. That can only be a reference to the Home Building Act 1989 (NSW). For contracts entered into before 1 February 2012, the limitation period under s 18E of the HBA was 7 years. Time runs, ordinarily, from the completion of the work: S 18E(1)(c). Section 3B defines when completion occurs, and sub-s (3) presumes the earliest of four dates. The plaintiff pleads in paragraph 17 that the relevant unit was completed in 2009. Proceedings based on breach of the statutory warranties are, therefore, statute-barred.

25. For all of these reasons, the plaintiff’s proposed claim will inevitably fail. She should not in the circumstances be permitted to plead it.

26. Although this is the third iteration of the statement of claim, the effect of Rothman J’s judgment was to leave any claim against Mr Rose on foot, although quite what that claim is, in the light of that judgment, is difficult to discern. The plaintiff appears to accept that she cannot plead a conspiracy against Mr Rose alone, although it not obvious that that was what was pleaded in the amended statement of claim.

27. Three attempts to plead properly against a defendant might ordinarily mean that the proceedings would be dismissed, having regard to s 56 of the Civil Procedure Act 2005 (NSW). However, I consider that as a self-represented litigant the plaintiff should be given one last chance to plead a maintainable cause of action against Mr Rose. Until such time as that is done, it is not possible to determine the appropriateness or otherwise of removing the District Court proceedings into this Court, although the plaintiff would need to demonstrate why it would be appropriate to have two proceedings in two courts against the same defendant.

28. Accordingly, I make the following orders:

1. Dismiss the plaintiff’s notice of motion filed 27 August 2020.

2. Leave is given to the plaintiff to serve on the defendant’s solicitors any proposed further amended statement of claim on or before 26 April 2021.

3. Stand over the proceedings and the defendant’s notice of motion filed 9 July 2021 for further directions on 30 April 2021.

4. The plaintiff is to pay the defendant’s costs of the plaintiff’s notice of motion.

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Decision last updated: 29 March 2021