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

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.
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…

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 Majak v Rose

Details

AGLC: Majak v Rose [2021] NSWSC 292
Case: [2021] NSWSC 292
Decision Date: 29 March 2021

CaseChat Overview and Summary

The case of Majak v Rose involved the plaintiff, Majak, who sought leave to amend their statement of claim against the defendant, Rose. The dispute centred around financial matters arising from their de facto relationship and involved claims relating to compliance with Family Court orders. Majak sought to introduce new claims concerning financial agreements and alleged breaches of court orders, which were initially not part of the original proceedings. The Family Court was asked to determine whether the plaintiff should be granted leave to amend their statement of claim to include these new claims.

The court had to decide whether it was appropriate to allow the amendment of the statement of claim to include the new financial claims. The legal issues included the jurisdiction of the court to hear the matter, the applicability of estoppel principles to prevent the plaintiff from introducing new claims, the statute of limitations, and the fairness of allowing the amendment given that the plaintiff was self-represented. The court needed to weigh these considerations against the need for the court to ensure justice was done in the circumstances.

The court found that while the Family Court had jurisdiction to deal with matters relating to de facto relationships, the plaintiff was estopped from raising the proposed new claims. It was deemed unreasonable for the plaintiff not to have raised these claims in the Family Court proceedings. Additionally, the claims were found to be statute-barred. Despite the plaintiff being self-represented, the court concluded that it was not just and reasonable to grant leave to amend the statement of claim. However, the court did allow the plaintiff to serve a further amended statement of claim to clarify any misunderstandings and to ensure all relevant issues were addressed.

The notice of motion was dismissed, but the plaintiff was given leave to serve a proposed further amended statement of claim. The court's decision highlighted the importance of timely and comprehensive presentation of claims in family law matters, particularly when dealing with complex financial issues between parties in a de facto relationship.

Orders