Mundae v Horan
[2009] VCC 101
•23 January 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-04184
| JASDEEP KAUR MUNDAE | Plaintiff |
| v | |
| TIMOTHY JOHN HORAN | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 January 2009 |
| DATE OF JUDGMENT: | 23 January 2009 |
| CASE MAY BE CITED AS: | Mundae v Horan |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0101 |
REASONS FOR JUDGMENT
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Catchwords: PROPERTY LAW – Property Law Act 1958 – proceeding brought under Part IX by Writ endorsed with a Statement of Claim – defendant failed to file an Appearance or a Defence – application on Summons for judgment – judgment entered for the plaintiff pursuant to Order 21.01 and 21.02 – requirement for the plaintiff to adduce evidence to obtain an order for adjustment pursuant to section 285(1) – order for adjustment made – self-executing order providing the defendant was 21 days from the date of making of the orders to set the judgment an order for adjustment aside: Order 21.01 and 21.02 of the County Court Rules of Procedure in Civil Proceedings 1999; section 285(1) of the Property Law Act 1958.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Eidelson | Westminster Lawyers |
| For the Defendant | No Appearance | |
| HIS HONOUR: |
Introduction
1 The plaintiff commenced a proceeding by Writ filed on 1 October 2008 seeking an order for adjustment of property interests pursuant to section 285(1) of the Property Law Act 1958.
2 Mr Daryl West, process server, served the defendant with a sealed copy of the Writ and the Statement of Claim personally on 1 November 2008. Mr West swore an affidavit of service deposing to such service and the method of service on 3 November 2008. The original affidavit of service was filed by the plaintiff's solicitors.
3 After perusing the affidavit of Mr West, I am satisfied that the defendant was served at the time, at the place and by the means deposed to by Mr West.
4 Ms Allison May Slocombe, solicitor, swore an affidavit on 19 December 2008 deposing to instructions which she obtained from the plaintiff and her attempts to contact the defendant to inform him that the plaintiff had engaged her to act as her solicitor and to encourage the defendant to defend the plaintiff's proceedings.
5 I do not intend to set out seriatim each of the attempts made by Ms Slocombe to contact the defendant, suffice to say the attempts were considerable and met with no success.
6 The plaintiff caused to be filed a Summons on 22 January 2008 applying for her proceeding to be heard on 22 January 2009. A sealed copy of the Summons and a true copy of the affidavit of Ms Slocombe was served upon the defendant by Mr West on 19 January 2009. Mr West swore an affidavit of service deposing to such service and the method of service, on 20 January 2009. The original affidavit of service was filed by the plaintiff's solicitors.
7 The additional step of serving the defendant with a copy of the Summons in the affidavit of Ms Slocombe was probably unnecessary given the failure of the defendant to file an Appearance and a Defence, however, it was a prudent step to have taken because it ultimately satisfied me that I should accede to the application made by Mr Eidelson that I should allow the plaintiff to enter judgment against the defendant and then assess whether I should make an order in her favour pursuant to section 285(1).
8 In between filing the Summons, and the service of it, and the affidavit on the defendant, Ms Slocombe wrote to the defendant by letter dated 6 January 2009 informing him that the plaintiff intended to apply to the Court to hear her proceedings on an undefended basis, notifying him of the date and time at which such application would be made and enclosing a copy of the Summons and her affidavit.[1]
[1] The letter was tendered by Mr Eidelson: Exhibit A
9 In the course of the plaintiff’s sworn evidence, she deposed to the fact that she had spoken to the plaintiff as recently as Friday, 16 January 2009 to see whether there was a basis upon which they could settle the proceedings. The plaintiff said that the defendant was not interested in speaking to her. She said he was aware, from that conversation, that she intended to apply to the Court to hear her proceeding on an undefended basis on 22 January 2009.
10 It is difficult to appreciate how much more the plaintiff and her solicitor could do to encourage the defendant to defend the proceeding. It is, of course, the defendant’s right to do as he pleases, but there is the risk that without putting his case before the Court, orders might be made which he considers do not reflect the correct position of the parties.
11 After considering all of the foregoing material and the submissions of Mr Eidelson, I concluded that there was no basis upon which the plaintiff should be denied her right to rely on the Rules of Court and to have her proceedings heard and determined on an undefended basis.
12 Mr Eidelson submitted that I should allow the plaintiff to enter judgment in accordance with the pleadings without the necessity for the plaintiff to give any evidence.
13 I am not persuaded that I should take that approach. Proceedings under Part IX are unlike other proceedings for a debt or a liquidated sum. It is more akin to proceedings where it is appropriate to enter judgment, but then for an assessment of damages to be undertaken.
14 I reached that conclusion because whether the proceedings are defended or not, the legislative directive is for me to exercise a discretion whether to make an adjustment of property interests, and if in the exercise of discretion I conclude that I should, then it is for me to determine what is just and equitable, having regard to the financial and non-financial contributions made directly or indirectly by the domestic partners to the acquisition conservation or improvement of any property et cetera of the domestic partners.
15 The only way in which the discretion can be exercised it is by having evidence adduced on the very issues which arise for consideration in section 285 (1).
16 Although proceedings of this kind filed in the Supreme Court are invariably commenced by pleadings, I have come to the conclusion that the proceedings really ought to be commenced by Originating Motion supported by affidavit material. This kind of proceeding is more akin to property cases in the Family Court which is not a court of pleading and which deals with matrimonial causes on the basis of an application and evidence on affidavit.
17 In any event, the issue of how the proceeding ought to be commenced is of decreasing interest because the common law courts of the State of Victoria are unlikely to hear this kind of proceeding after about March 2009 when the whole jurisdiction will be subsumed into the jurisdiction of the Family Court.
The Plaintiff’s Evidence
18 The plaintiff was called to give evidence. She gave evidence that she entered into a domestic relationship with the defendant on 31 January 1998 which subsisted until 1 September 2007.
19 The plaintiff essentially then gave evidence consistent with the factual allegations contained in the Statement of Claim.
20 In opening the plaintiff's case, Mr Eidelson referred to the Statement of Claim and said he would invite me to accept the factual allegations made by the plaintiff there and to make orders in favour of the plaintiff consistent with the prayer for relief which applied for an adjustment of property interests in favour of the plaintiff to the extent of 60 per cent of the net value of the two properties, which the plaintiff gave evidence comprised the assets accumulated during the domestic partnership.
21 I asked the plaintiff why it was that she deserved an adjustment more favourable to her than the defendant. She said that she had contributed equally with the defendant to the acquisition of the two properties, however, there was a significant period during which she was solely responsible for the payment of mortgage instalments, and she contributed to renovations in excess of moneys contributed to the same by the defendant.
22 In the circumstances, and given the evidence of the plaintiff, I am satisfied:
• that the plaintiff and the defendant lived together in a domestic relationship for a period of at least two years. • That the plaintiff and the defendant accumulated assets comprising the two properties referred to by the plaintiff in the Statement of Claim. • That the plaintiff did make financial and non-financial contributions directly and indirectly to the acquisition, conservation and improvement of the two properties. • That it would be just and equitable to adjust the property interests of the plaintiff and the defendant as to 60 per cent to the plaintiff and 40 per cent to the defendant. Orders 23 One of the matters which was of concern to me was whether I should make an order that the proceedings be fixed for trial and that a copy of the order be served upon the defendant by the plaintiff in order to give the defendant another opportunity to consider his position.
24 After hearing submissions from Mr Eidelson, and reading the documents referred to in paragraphs 1-9 above, and after hearing the evidence of the plaintiff, I have concluded that the submission made by Mr Eidelson that a further order be made that the defendant be given 21 days within which to file a defence and affidavit material disclosing reasons for failing to file an Appearance and a Defence, achieved the same result.
25 In the circumstances, and for the reasons set out above, I make the following orders:
(a) That the real properties described as follows:
•
31 Lockwood Road, Belgrave Heights, in the State of Victoria, more particularly described in Certificate of Title Volume 06738 Folio 524; and
•
1 and 1A Chatham Avenue, Ferntree Gully, in the State of Victoria, more particularly described in Certificate of Title Volume 08079 Folio 281 –
be sold forthwith out of Court by public auction.
(b)
That in the event that there is any disagreement between the parties as to the:
• terms of sale; and • reserve price in respect of either property, the President of the Real Estate Institute of Victoria be requested to nominate a real estate agent who shall manage the sale.
(c)
That upon the sale of each property, and after payment of the respective costs of sale, agent’s fees, outstanding mortgages and other council rates and adjustments, the balance of the said proceeds of sale be paid out as follows:
• as to 60 per cent to the plaintiff; and • as to the balance to the defendant. (d)
That a sealed copy of the Judgment made this day and these Orders be served upon the defendant forthwith by registered post at his last known place of residence.
(e)
That the defendant be at liberty to file a Defence and supporting Affidavit within 21 days of service, setting out why these Orders should be set aside and providing explanation of his non appearance this day and failure to file any material before the Court to date.
(f)
The defendant pay the plaintiff’s costs, including any reserved costs, to be taxed on Scale “A” of the County Court Scale of Costs in default of agreement.
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