Mrowka v Format Finishing Pty Ltd - [2007] WADC 201

JURISDICTION

DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION

: PERTH

CITATION

:	MROWKA -v- FORMAT FINISHING PTY LTD [2007] WADC 201

CORAM

: SWEENEY DCJ

HEARD

:	18 JUNE 2007

DELIVERED

:	16 NOVEMBER 2007

FILE NO/S

:	CIV 2438 of 2006

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

:	MROWKA -v- FORMAT FINISHING PTY LTD [2007] WADC 59

File No

:	CIV 2438 of 2006

[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…

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 Mrowka v Format Finishing Pty Ltd

Details

AGLC: Mrowka v Format Finishing Pty Ltd [2007] WADC 201
Case: [2007] WADC 201
Decision Date: 16 NOVEMBER 2007

CaseChat Overview and Summary

In the case of Mrowka v Format Finishing Pty Ltd, the respondent sought to recover a debt incurred during a de facto relationship with the appellant. The matter was heard in the Family Court of Australia. The primary judge, Registrar L M C Byrne, initially found that the Family Court had exclusive jurisdiction to hear the matter due to the relationship between the parties. However, a subsequent appeal before Judge A M Bidstrup and Judge J S Cohen resulted in a decision to grant a stay of proceedings on the basis that the Family Court lacked jurisdiction.

The key legal issue before the court was whether the Family Court had jurisdiction to hear the respondent's claim for recovery of a debt incurred during a de facto relationship. This issue hinged on whether the Family Court's jurisdiction was exclusive or whether the Federal Circuit Court had concurrent jurisdiction. The court also had to consider whether the Family Court's prior consent orders affected the jurisdiction to hear the current claim.

The court concluded that the Family Court did not have exclusive jurisdiction to hear the respondent's claim for recovery of the debt. The court found that the Federal Circuit Court had concurrent jurisdiction over the matter. The court further determined that the prior Family Court consent orders did not affect the jurisdiction of the Federal Circuit Court to hear the current claim. Consequently, the appeal was allowed, and the proceedings were stayed for want of jurisdiction.

In light of the court's determination, the final orders were that the appeal was allowed, the stay of proceedings granted by the Registrar was affirmed, and the matter was to be transferred to the Federal Circuit Court for further determination.

Orders