Mrowka v Format Finishing Pty Ltd
[2007] WADC 201
•16 NOVEMBER 2007
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM | : SWEENEY DCJ | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : IRENEUSZ MROWKA |
Plaintiff
AND
FORMAT FINISHING PTY LTD (ACN 059 243 948)
Defendant
ON APPEAL FROM:
| Jurisdiction | : | DISTRICT COURT OF WESTERN AUSTRALIA |
| Coram | : REGISTRAR KINGSLEY | ||
| Citation |
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| File No |
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[2007] WADC 201
Catchwords:
Exclusive jurisdiction of Family Court - Action to recover debt incurred during de facto relationship - Prior Family Court consent orders - Appeal from Registrar granting stay of proceedings for want of jurisdiction
Legislation:
Family Court Act 1997 s 205T, s 205U, s 205ZA, s 205ZG, s 205ZH, s 205ZJ, s 205ZLA, s 205ZLF
Result:
Appeal dismissed. Action dismissed
Representation:
Counsel:
| Plaintiff | : | Mr C P Stokes |
| Defendant | : | Mr B W Ashdown |
Solicitors:
| Plaintiff | : | Chris Stokes & Associates |
| Defendant | : | Meredith Hunter & Associates |
Case(s) referred to in judgment(s):
Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217
[2007] WADC 201
SWEENEY DCJ
SWEENEY DCJ: This is an appeal from a decision of Registrar Kingsley delivered 30 April 2007 by which the learned Registrar stayed the action in this Court for want of jurisdiction.
2 By writ of summons filed 8 December 2006, the plaintiff seeks
recovery of a debt of $98,745.43 said to be owing to him by the defendant
company, of which he was formerly a director and shareholder.
According to par 3 of his statement of claim:
"From time to time between 1992 and 30 June 2006 the plaintiff advanced funds to the defendant for the operating costs of the business, which loan account sums were recorded in the journal of the plaintiff's loan account with the defendant."
4 On its face therefore the plaintiff's claim is a straightforward claim in
debt owing from his former business. The defence, filed 21 December 2006, does not admit any paragraph of the statement of claim. The defendant initially filed an unconditional appearance which, two days later, it sought to replace with a conditional appearance. Leave is sought but has not yet been granted for the filing of the conditional appearance.
5 The plaintiff then sought summary judgment pursuant to O 14 of the
Rules of the Supreme Court 1971. The defendant opposed the application on the basis that, the defendant's business being one of the assets specifically dealt with by consent orders made in the Family Court in proceedings between the plaintiff and Ms Violetta Siudek, the plaintiff's former de facto partner, this matter lies within the exclusive jurisdiction of the Family Court. Registrar Kingsley accepted that argument and stayed these proceedings.
The Family Court proceedings
6 The plaintiff and Ms Siudek were in a continuous de facto
relationship between 1987 and October 2004. In 1992 they established the defendant company as trustee for the Format Trust which was the legal owner of the print finishing business they operated together. Both held shares and directorships in the defendant. There were 24 units in the Format Trust, the plaintiff and Ms Siudek each holding six units, the remainder being held by three daughters.
On 27 June 2006 the plaintiff and Ms Siudek filed a Form 11 Application for Consent Orders ("the Form 11") in the Family Court of Western Australia.
[2007] WADC 201
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8 By that document the parties recorded that they had agreed that on
30 June 2006 the plaintiff's daughter would transfer her four units in the Format Trust to Ms Siudek for $75,000 and that on 30 June 2007 Ms Siudek's daughter Caroline and the parties' daughter Paula would each transfer their two units in the Format Trust to Ms Siudek, each daughter to be paid $37,500. Each unit then was valued in those transactions at $18,750.
9 The parties also agreed upon 13 proposed orders "as and by way of
property settlement and with the intent that the Orders made herein shall, as far as practicable within the meaning of Section 205ZJ of the Family Court Act 1997, finally determine the financial relationship between the parties and avoid further proceedings between them". The orders mutually agreed included (with the descriptions "Plaintiff" and "Ms Siudek" substituted for "Respondent" and "Applicant" for ease of understanding):
"…
2. Within 30 days of these Orders being made, the Plaintiff do all acts and things and sign all documents necessary in order to:
2.1 transfer to Ms Siudek all of his right, title and interest in 12 shares in Format Finishing Pty Ltd as trustee for the Format Trust, trading as Format Finishing ('the Company') for the consideration of $12.00; 2.2 resign from the position as Director of the
Company;2.3 transfer to Ms Siudek all of his right, title and interest in 6 units in the Format Trust ('the Trust'); 2.4 cancel his American Express Card that is
currently connected to the Company; and2.5 cancel the signature authority held with Westpac
Bank on behalf of the Company.…
[2007] WADC 201
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6. Forthwith upon signing this Minute the Plaintiff be restrained by injunction from doing the following in relation to the Company and the Trust:
6.1 entering into any financial commitments on behalf
of the Company;6.2 incurring liabilities; and 6.3 deducting monies. … 8. Contemporaneously with Orders 2, 3 and 4 above, Ms Siudek do all acts and things and sign all documents so as to:
8.1 pay the Plaintiff the sum of $161,512, upon the transfer of the Plaintiff's 6 Units in the Trust, and 12 shares in the Company to Ms Siudek; 8.2 ensure that the Plaintiff is paid a salary by the Company of $800.00 gross per week until the transfers pursuant to Orders 2 and 3 hereof, with the Plaintiff to leave the business premises upon the filing date of this Application; 8.3 indemnify the Plaintiff in relation to any liabilities, claims, debts, demands or actions against the Plaintiff, in his capacity as Director, Shareholder and/or beneficiary in the Company and the Trust; 8.4 indemnify the Plaintiff in relation to any loan
account owing by the Company or the Trust; and8.5 refinance all current business mortgage payouts on equipment purchases and amend leases so as to discharge the Plaintiff from liability as a guarantor. …
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12. That unless specified in these Orders:
12.1 each party be solely entitled to the exclusion of the other party to all property (including choses in action) in the possession of such party as at the date of these Orders; 12.2 the monies standing to the credit of the parties in any bank, building society, credit union or other financial institution account remains the property of the deposit holder; 12.3 insurance policies remain the sole property of the
beneficiary named therein;12.4 each party shall forego any claims that they may have to any superannuation benefits belonging to or earned by the other; 12.5 each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to (sic) pursuant to these Orders; 12.6 each party be solely liable for any credit card
debts or other loans in their name.…"
10 By Part K of the Form 11 the plaintiff swore an affidavit attesting
that the matters stated in the application (which pertained to him) were true and that he had no interest in property or a financial resource which was not described in column 2 of Part G. Part G required each party to provide details of all his or her property, liabilities and financial resources. Both parties described their "interest in any business" as being a 25 per cent share of the defendant company which they each estimated to be worth $112,500. I note this figure coincides with six units in the Format Trust each valued at $18,750. The plaintiff did not list the debt owing from the defendant as an asset. Each party, asked to disclose his or her "interest in any trust or other financial resources" stated "only interest in a Trust is Format Trust as disclosed at Q 35", the value of which was placed at "nil". Each party agreed that the financial and non-financial contributions to the de facto relationship by each party was the same.
[2007] WADC 201
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Asked in Part H to describe the effect of the property orders sought, Ms Siudek indicated that, following the orders, she would have $225,000 (50 per cent) interest in a business while the plaintiff would have $nil interest in the business but would receive $161,500 by way of "other property". The parties also agreed on other orders as to their two homes, which need not be detailed here.
12 On 28 June 2006, by consent, the Family Court pronounced the
orders sought. The orders were complied with and settlement took place. Subsequently by letter dated 24 November 2006 the plaintiff demanded the defendant repay the debt claimed and then issued these proceedings.
Evidence as to the existence of the debt and to whom it is owed
13 In his affidavit of 15 January 2007 in support of this application the
plaintiff attests that the facts set out in the statement of claim are true and annexes a document "IM1" described as "a true copy of the Director's Loan Accounts of the Format Trust as at 30 June 2006 showing the amount of $98,745.34 owing to me". This is a single page, not on letterhead, apparently transmitted by facsimile to someone on 8 November 2006 from "JMC Tax and Accoun" headed "The Format Trust – 30/06/2006 – Director's Loans." It sets out in two columns moneys said to be owing to the plaintiff and Ms Siudek specifying the individual drawings of each and indicating two individual directors' loans by which the plaintiff was owed the sum he now claims and Ms Siudek was owed $110,679.
This same document also states that as at 1 July 2005 there had been an individual balance carried forward, of two individual loans.
15 The defendant argues that if it is in debt to the plaintiff (which is
denied) then any moneys advanced by the plaintiff to it were advanced from the plaintiff and Ms Siudek's joint funds during the de facto relationship.
In par 18(d) of Ms Siudek's affidavit of 5 February 2007 she states:
"The plaintiff claims, in paragraph 3 of this Statement of Claim filed herein, that he advanced the sums of money constituting the alleged loan at various times between 1992 and 2006. This was during the time of the de facto relationship. Therefore, I believe that part, if not all, of these funds constituting the alleged loan, originated from the joint financial resources that were pooled by the plaintiff and I during the de facto
[2007] WADC 201
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relationship. As such, I believe that if this loan is proven established in this Court to be both due and payable from the defendant, then I too should also have a claim to part of this loan."
17 Annexed to the plaintiff's affidavit of 13 March 2007 is a letter to
him dated 2 February 2007 from J & M Calabro & Associates Pty Ltd, registered tax agent, which bears the same facsimile imprint "JMC Tax and Accoun" and a facsimile transmission date of 2 February 2007.
This letter to the plaintiff from J Calabro states:
"Re: Directors Loan Accounts – Format Finishing Pty Ltd
A/T/F The Format Trust T/As Format FinishingWe refer to your recent query in regard to the loan accounts and confirm our verbal notification in that as soon as we became aware of the lack of personal communication between the directors, we requested Ms Sonia Salotti, the Office Manager/Bookkeeper to establish separate director's loan accounts. Sonia has complied with our request and separate loan transactions have been processed since the 1st July 2004."
19 The letter is ambiguous in that it does not make clear whether
separate loan transactions were first established back on 1 July 2004 or whether, after the fact, separate loan transactions have been documented going back to 1 July 2004. The letter might also indicate that the instructions to establish separate directors' loan accounts came from the plaintiff only and does not tend to suggest that Ms Siudek gave similar instructions or consented to the establishment of separate directors loan accounts, although the letter does not necessarily exclude such a possibility.
Ms Siudek's affidavit of 16 March 2007, by contrast, annexes the financial statements of the defendant for the years ending 30 June 2005 and 30 June 2006. These documents also appear to have been prepared by J & M Calabro & Associates Pty Ltd. Listed under "current liabilities" in the Format Trust balance sheet as of 30 June 2005 is the sum of $264,475 described as "Loan – I Mrowka and V Siudek". Listed under "current liabilities" of the Format Trust balance sheet as at 30 June 2006 is the sum of $209,625 described as "Loan – I Mrowka and V Siudek". The sum of $209,625 fairly closely correlates to the two purported individual loans set
[2007] WADC 201
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out in Annexure IM1 to the plaintiff's affidavit of 15 January 2007. The
two individual loans described in that document total $209,425.21 There are before me no particulars or evidence of the individual
amounts advanced by the plaintiff "from time to time" to the defendant or the dates on which that is said to have occurred. There is no evidence before me of any terms upon which any moneys were advanced and when such sums might be repayable. There is no satisfactory evidence before me enabling me to determine whether the amount claimed represents some apportionment to the plaintiff derived by an accountant out of what was truly a joint loan to the defendant on the part of the plaintiff and Ms Siudek out of joint funds or whether the amounts loaned were, at the time they were loaned, the plaintiff's money. The evidence before me tends to prove that, at least from 1992 – 1 July 2004, the amounts loaned were from joint funds. The de facto relationship ended in October 2004. Whether any amounts were jointly loaned after 1 July 2004 I cannot determine and nor can I judge the accuracy of any apportionment, though the breakdown in Annexure IM1 indicates Ms Siudek is owed a greater sum than the plaintiff.
Jurisdiction of the Family Court
22 The Family Court is invested with federal jurisdiction by the
Family Law Act 1975. Its non-federal jurisdiction is conferred by s 36 of the Family Court Act 1997 ("the Act"). Section 36 of the Act provides:
"(1) The Court has throughout the State the non-federal jurisdictions conferred on it by or under this or any other Act.
…
(4a) Without limiting subsection (1), the Court has jurisdiction
under Part 5A to -
(a) make declarations and to revoke declarations that it has made;
(b)
hear and decide all other matters under that Part,
and in particular the Court has jurisdiction to hear and
decide the following −
[2007] WADC 201
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(c)
applications for orders with respect to property;
(d)
applications for orders for the provision of maintenance.
…
(8) Non-federal jurisdiction conferred on the Court is
exclusive of any other court except as provided under
section 39 or where an appeal lies to the Supreme Court."
Part 5A of the Act concerns de facto relationships: s 205U.
Within Part 5A, s 205ZA of the Act provides:
"205ZA Declaration of interests in property - FLA s. 78
(1) In a proceeding between de facto partners with respect to existing title or rights in respect of property, a court may declare the title or rights, if any, that a partner has in respect of the property. (2) Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession. (3) A declaration or order under this section is binding on the
de facto partners but not on anyone else."
[2007] WADC 201
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Further, s 205ZG(1) of the Act provides:
"205ZG. Alteration of property interests - FLA s. 79
(1) In proceedings with respect to the property of de facto partners, or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the partners to make, for the benefit of either or both of the partners or a child of the de facto relationship, such settlement or transfer of property as the court determines. …"
26 It is common ground that the plaintiff and Ms Siudek were people to
whom Part 5A of the Act applied. There is no suggestion that the alleged loan in this case was the subject of any binding or former financial agreement between the parties taking it outside the operation of Part 5A.
27 The Family Court therefore had jurisdiction and power to declare the
title or rights that the plaintiff and Ms Siudek had in respect of property, to alter their interests in respect of that property and make consequential orders.
Pursuant to s 205T:
"Property, in relation to de facto partners, or either of them, means property to which those parties are, or that property is, as the case may be, entitled, whether in possession or reversion."
29 It is common ground that any debt owing to the plaintiff by the
defendant company falls within the definition of "property" in relation to de facto partners so that, pursuant to s 205ZA and s 205ZG the Family Court had power and jurisdiction to make orders with respect to that property, declaring the title or rights that the plaintiff had in respect to the loan or altering his interests in that property.
[2007] WADC 201
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Section 205ZJ of the Act provides:
"205ZJ. Duty of court to end financial relations of de facto
partners - FLA s. 81
In considering what order to make in a proceeding under this Division, other than under section 205ZA, a court must, as far as practicable, make such orders as will finally determine the financial relationships between de facto partners who are no longer in a de facto relationship and avoid further proceedings between them."
31 The Court has certain obligations set out in s 205ZG, namely that the
Court must not make an order altering the interests of the parties in property unless it is satisfied that in all the circumstances it is just and equitable to do so (s 205ZG(3)) and, in considering such orders, the Court must take into account a number of factors including the financial contribution made by the de facto partners to the property, the contribution made by the de facto partners to the welfare of the family, the effect of any such order upon the earning capacity of either and other factors going to the welfare of any children of the relationship.
32 The plaintiff's submission, put simply, is that his action to recover a
debt owing to him by the defendant is not a proceeding between de facto partners. The proceeding is a claim by one of the de facto partners against a third party. The plaintiff's submission is that, if the Family Court has exclusive jurisdiction to determine such claims then, anytime a de facto partner wishes to take legal action against, for example, his own bankers or insurers, the Family Court will have exclusive jurisdiction over such matters, simply because the property is owned or claimed by a person once in a de facto relationship. The plaintiff's argument is that this cannot be the case and that the plaintiff's action in this Court is merely the enforcement of a property right he has against a third party.
33 This proposition, however, quite overlooks the reality of the financial
position of the de facto parties at the time at which the consent orders were sought. Notwithstanding that the orders were sought by consent, the Family Court has obligations as discussed above in relation to the orders it makes, which obligations will be considered on the basis of the information provided to the Court by the parties in the Form 11 application which was intended to set out the financial position of the parties. Those consent orders specifically dealt with the business of the
[2007] WADC 201
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defendant and, by a series of orders, achieved the result that the plaintiff would no longer have any interest or involvement in the defendant and would be indemnified against any liability arising out of that business. Orders were made pursuant to s 205ZG altering the interests of the parties in the defendant including orders for the transfer of certain property, being shares in the unit trust and payment to the plaintiff of money in substitution for his interest. In making such orders the Court was obliged to consider the effect of the order upon the earning capacity of the de facto partners and be satisfied that the orders made were just and equitable.
No specific reference was made in the consent orders or the Form 11 to the alleged debt to the plaintiff, nor to any debt from the defendant to Ms Siudek. There is a significant point of dispute between the parties as to the effect of those consent orders.
35 It is common ground that O 8.4 of the consent orders, though it refers
to loan accounts, does not support the plaintiff's claim against the
defendant.36 However, the plaintiff points to O 12.1 of the consent orders as
encompassing any debt owing to him by the defendant and confirming his claim. By O 12.1 the plaintiff and Ms Siudek agreed that each would be exclusively entitled to all property, including choses in action, in his or her possession as at the date of the orders. The plaintiff's submission is that O 12.1 was a "catch-all" order for property not particularised and therefore the debt was contemplated by the consent orders, the plaintiff is still in possession of the chose in action against the defendant and is entitled to sue to recover that debt.
37 The defendant argues that, rather than the debt being confirmed by
O 12.1, the consent orders extinguished any debt owing by achieving, for consideration, the removal of the plaintiff from any interest he formerly had in that business, including his interest as creditor. Further, the defendant argues that, as any debt owing to the plaintiff prior to the consent orders fell within the definition of "property" within the Act and as applications between de facto partners with respect to their property fell within the exclusive jurisdiction of the Family Court, the disposition of that property and the construction to be placed upon the consent orders falls within the jurisdiction of the Family Court and, that jurisdiction being exclusive, such questions cannot be determined by this Court.
[2007] WADC 201
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Still contained within Part 5A of the Act, s 205ZLA in Div 2A
provides:
"205ZLA. Object of Division - FLA s. 90AA
The object of this Division is to allow a court, in relation
to the property of a de facto partner, to −
(a) make an order under section 205ZG or 235A; or (b) grant an injunction under section 235A, that is directed to, or alters the rights, liabilities or
property interests of a third person."
Section 205ZLF(2) provides:
"…
(2) In proceedings under section 205ZG, a court may
make any other order that −
(a) directs a third party to do a thing in relation to the property of a de facto partner; or (b) alters the rights, liabilities or property interests of a third party in relation to a de facto relationship."
40 The broad thrust of Div 2A relating to orders and injunctions binding
third parties is directed to creditors of the de facto parties rather than debtors, but s 205ZLF(2) would also appear to empower the Family Court to direct the defendant to pay the plaintiff or alter the liability of the defendant company to the plaintiff in proceedings with respect to the property of de facto partners.
41 The defendant's argument then is that because Part 5A of the Act
empowers the Family Court to make an order altering the liability of the defendant towards the plaintiff and to make orders generally with respect to property of de facto partners under Part 5A and because that jurisdiction is exclusive, no other court has jurisdiction to do the same and specifically this Court lacks jurisdiction to determine the plaintiff's claim.
42 If the consent orders were intended to and did provide that the
plaintiff was entitled, to the exclusion of Ms Siudek, to that chose in
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action against the defendant and if the consent orders did not extinguish that debt then I am not persuaded that this Court would lack jurisdiction to determine the plaintiff's claim in debt against the defendant. Such a claim would merely be seeking to enforce the plaintiff's property rights against a third party consistent with the Family Court orders and would not involve this Court altering the rights or liabilities of any third party or altering the interests of de facto partners in any property. In my view while the Family Court has power to order the defendant to make payment to the plaintiff, this Court does not lack jurisdiction to give a judgment. However, this begs the question in issue.
43 The defendant argues that any debt owing by it to the plaintiff prior
to the consent orders was extinguished by the consent orders. While the defendant does not point to specific orders in the consent orders, O 6 provides that the plaintiff be restrained from "deducting monies" in relation to the defendant and the Format Trust. I note that annexure "IM1" to the plaintiff's affidavit of 15 January 2007 shows the individual directors' loans reducing by way of "drawings" by the plaintiff and Ms Siudek. Order 8 orders Ms Siudek to indemnify the plaintiff in relation to any liabilities, claims, debts, demands or actions against him in his capacity as director, shareholder and/or beneficiary in the company and the trust and to indemnify the respondent in relation to any loan account owing by the company or the trust. The consent orders are therefore indemnifying the plaintiff as former director against claims such as the one he is now making. The overall effect of the consent orders, particularly bearing in mind the Form 11 supporting them, makes it very arguable that any debt owing to the plaintiff by the defendant was intended to be extinguished as part of the buying out of the plaintiff from the defendant and the Format trust. The parties to the consent orders do not agree as to their meaning.
44 A third possibility is that, notwithstanding that any debt owing to the
plaintiff by the defendant was within the exclusive jurisdiction of the Family Court as being within the definition of "property" contained in s 205T, the parties to the consent orders overlooked it and it was not encompassed by the consent orders and ought still to be considered by the Family Court.
45 This Court has jurisdiction to hear and determine a claim to recover a
debt within its monetary jurisdictional limit. In determining any issue of estoppel which might be raised in defence, this Court could, as a matter of construction, rule upon the effect of the consent orders made in the Family Court. What this Court will not have jurisdiction to consider, however, is
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any unjust or inequitable impact upon Ms Suidek in deciding the plaintiff's action against the defendant. Nor will this Court have any jurisdiction to vary or revoke the Family Court orders or make further such orders.
46 The powers of the Family Court to re-open and consider the consent
order may be limited, particularly as they were made by consent (see Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 at par 122 to 152 and the authorities cited therein). Section 205ZH, however, does give that Court power, on the application of a person affected by an order made by the Court under s 205ZG, to vary an order or set it aside and make another order in substitution for the order so set aside. The parties may also consent to such a course of action. The grounds upon which the Court may vary or set aside the order include where there has been a miscarriage of justice by reason of suppression of evidence (including failure to disclose relevant information) or any other circumstances and where circumstances have arisen which make it impracticable for the order or part of it to be carried out.
47 In this case either property which fell within the definition of
property contained in s 205T of the Act was overlooked in the consent orders but remains within the exclusive jurisdiction of the Family Court to consider, or the property was addressed in the consent orders but the parties to those orders are diametrically opposed as to their interpretation of the orders they agreed upon.
48 This Court has no power whatsoever to make any orders inconsistent
with the consent orders and does not enjoy the powers and obligations of that court in dealing between de facto partners in respect of property falling within the scope of the Family Court Act.
49 The matter is further complicated by the question of whether the
funds allegedly advanced by the plaintiff to the defendant from time to time were joint funds advanced by the plaintiff and Ms Suidek, who is not a party to the plaintiff's claim. The material before me suggests that is so. If so, that is not cured by apportionment by an accountant. While this Court has power to grant equitable relief ancillary to an action in debt, it does not have jurisdiction to give equitable relief as the principal relief. The Family Court by contrast has power to make declarations altering the interests of the parties in property and to alter the liabilities of third parties. Its very broad powers serve to promote the ends of achieving what is just and equitable in the division of property between parties to marital and de facto relationships.
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Conclusion
50 The plaintiff and Ms Siudek having applied to the Family Court for
orders with respect to their property and any debt owing to the plaintiff at that time falling within the definition of "property" contained within the Family Court Act, the disposition of that property fell within the jurisdiction of the Family Court. It was to be taken account of in any division of property. This is not an action in which a former de facto partner simply seeks to recover a debt from a true third party unconnected to, or in simple fulfilment of orders made in the Family Court. I conclude that the learned Registrar was correct in finding that this Court lacks jurisdiction to determine this claim. While before the learned Registrar the defendant asked for the action to be stayed, the defendant now submits that the appropriate order for this Court to make is one dismissing the action. I agree. In the circumstances, there is no need to grant leave to the defendant to amend or replace its unconditional appearance. While the plaintiff did submit that the filing of the unconditional appearance prevented the defendant from challenging the validity of the action, an unconditional appearance does not of itself give this Court jurisdiction. Accordingly the appeal is dismissed, but I will vary the order staying the action to instead dismiss the action.
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