Nguyen v Scheiff

[2002] NSWSC 151

Reported Decision: (2002) DFC 95-246

New South Wales

Supreme Court

CITATION:	Nguyen v Scheiff [2002] NSWSC 151 revised - 5/09/2002
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 1296/02
HEARING DATE(S):	27 February 2002
JUDGMENT DATE:	27 February 2002
PARTIES :	Philip Kim Nguyen (plaintiff) Jitka Marie Schieff (defendant)
JUDGMENT OF:	Campbell J

COUNSEL :	B Richards (plaintiff) T Hodgson (defendant)
SOLICITORS:	Keddies (plaintiff) Neil Lawson & Co (defendant)
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - interlocutory order for exclusive occupation of home - power of Supreme Court to grant - section 53 Property (Relationships) Act 1984 - applicability of principles used in similar cases under section 114 Family Law Act 1975 (Cth) - FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - application for adjustment of property interest under section 20 Property (Relationships) Act 1984 - ability of court to take into account contributions made after conclusion of relationship - REAL PROPERTY - co-ownership - whether interlocutory order under section 53 Property (Relationships) Act 1984 that one of the joint owners of property have exclusive occupancy requires person granted that order to pay an occupation fee
LEGISLATION CITED:	Property (Relationships) Act 1984 Conveyancing Act 1919 De Facto Relationships Act 1984 Interpretation Act 1987 Family Law Act 1975 (Cth) Supreme Court Act 1970 Crimes Act 1900
CASES CITED:	O'Kane v Fogarty (1985) 2 NSWLR 649 Leis v Dagwell (9 December 1993, unreported) Evans v Marmont (1997) 42 NSWLR 70 Davis v Davis [1976] FLC 90-062 Davis v Davis (1983) FLC 91-319 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 Biviano v Natoli (1998) 43 NSWLR 695 Beresford v Booth [1999] SASC 166 Roy v Sturgeon (1986) 11 NSWLR 454 Foster v Evans (1997) DFC 95-193 Jones v Grech [2001] NSWCA 208 Green v Robinson (1995) 36 NSWLR 96
DECISION:	Order made, on receipt of five undertakings.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

WEDNESDAY 27 FEBRUARY 2002

1296/02 PHILIP NGUYEN v JITKA MARIE SCHEIFF

JUDGMENT- (ex tempore)

1 HIS HONOUR: This is an application under s 53 of the Property (Relationships) Act 1984. It seeks an order that:

1. Until further order, the plaintiff, his servants or agents, be restrained from entering upon or approaching the property situated at 20 Valleyview Crescent, Greenwich, save at the express invitation of the defendant; and
2. That pending further order the defendant be granted the exclusive use and occupation of the property situated at 20 Valleyview Crescent, Greenwich.

2 The notice of motion is one filed by defendant, Ms Scheiff, in proceedings which the plaintiff, Dr Nguyen, has commenced for adjustment of property interest under s 20 of the Property (Relationships) Act 1984. For convenience, I will refer to the parties by name rather than by their role in litigation from now on.

3 There is a certain amount of common ground in the application. It is common ground that Dr Nguyen and Ms Scheiff lived in a de facto relationship. She says that it lasted from July 1997 until 25 July 2001. He says that it lasted from June 1998 to 25 July 2001. That difference does not matter for present purposes.

4 It is common ground that at one time they were engaged to be married and that they lived in a house at 20 Valleyview Crescent, Greenwich, which was purchased in the name of the two of them as joint tenants. The house was purchased with the proceeds of sale of a property which Dr Nguyen had previously owned, and a mortgage from the Commonwealth Bank of Australia. Dr Nguyen says that, as well, he made some cash contributions to the purchase price.

5 It is common ground that within a couple of days of 25 July 2001 Dr Nguyen had found a serviced apartment to live in, packed some of his belongings and moved out of the Greenwich house. He has not lived at the Greenwich house since late July 2001, that is over eight months ago. Dr Nguyen says that when he moved out he told Ms Scheiff that it was for a trial separation and that he would move out temporarily. Ms Scheiff says no such conversation occurred.

6 It is necessary to recount some of the events which have occurred since Dr Nguyen moved out. On 3 October 2001 the Greenwich property was broken into by a thief. Various items were stolen, some belonging to Dr Nguyen and some to Ms Scheiff. The theft was reported to the insurance company which had insured the contents in the house, but that claim was rejected, as Dr Nguyen had not paid the insurance premium in relation to the property.

7 On 13 October 2001 Dr Nguyen went into the house while Ms Scheiff was not there and removed various items of his own. As well, he altered the computer, so that it was not able to access the internet on an account for which he received the bills. Dr Nguyen says that it was perfectly open to Ms Scheiff to reinstate internet access by opening her own account with an internet service provider if she wanted to.

8 On 22 October 2001 there was a discussion between Dr Nguyen and Ms Scheiff on the telephone which resulted in Dr Nguyen coming to the house. In her affidavit Ms Scheiff says that she said to Dr Nguyen on the phone, “I do not want you to come here if you are going to be shouting at and abusing me” and he said, ‘I will not do that.’”

9 The form which the evidence has taken in these proceedings is that Dr Nguyen has examined, paragraph by paragraph, the affidavit evidence of Ms Scheiff, and has specifically stated when he denies or does not accept some particular allegation. In relation to certain incidents where he does not accept the evidence of Ms Scheiff, he gives his own version. The conversation which I have just mentioned, was one which Dr Nguyen did not cavil with.

10 After that conversation, Dr Nguyen arrived at the premises. Ms Scheiff says that he started to shout. Dr Nguyen denies that he shouted. On that occasion Dr Nguyen took the computer (which appears, on the limited evidence before me, to be the property of a company connected with him) some DVDs and some CDs. He also took some credit cards which Ms Scheiff had, and which related to accounts for which Dr Nguyen had been paying the bills. Ms Scheiff was left with a David Jones card but Dr Nguyen cancelled the account relating to that card soon after.

11 On 26 October 2001 Ms Scheiff had the locks on the house changed. She says that she had two reasons for this. One was that she did not feel safe with the plaintiff coming into the house at any time when he sought to. The other was that the burglary had made her apprehensive.

12 On 1 November 2001 there was a conversation between the parties which is of some significance to the submissions which were made. The account which Ms Scheiff gave in chief was, “I informed the plaintiff that the locks had been changed. We then had an argument.”

13 Dr Nguyen said that the discourse between them was a conversation, not an argument. Ms Scheiff put on a further affidavit on 26 February 2002. That affidavit gave fuller versions of some of the conversations which I have already mentioned. That affidavit attributed to Dr Nguyen statements on 22 October on the telephone where he says, for instance, “This is my house, I want you out. You have no bloody right to anything. I paid for it.”, where she responds that it belongs to both of them and they should sort something out, to which he replies “Bullshit, it’s all mine, I’ll show you.”

14 In relation to the conversation on 22 October at the house, in her second affidavit Ms Scheiff says that Dr Nguyen shouted and said words to the effect, “It’s not my fault we’re not insured, it’s your fault. You let the fucking woman in the house.” She also deposes to him saying on that occasion “You’re going to get nothing. I’ll show you. You have another thing coming”.

15 In relation to the conversation on 1 November, Ms Scheiff’s affidavit said that the plaintiff said, “In a shouting manner”, (as to why the locks had been changed) “Why?” Ms Scheiff said that she said, “I did not feel safe anymore with you coming and making a scene and abusing me any time you want. I need to get on with my life.” Ms Scheiff says that Dr Nguyen then started to scream: “So I cannot come to my own bloody house any more, I’ll show you, you will be sorry.”

16 On 4 November there was a conversation between them, where it is common ground that Dr Nguyen said he wanted to move back into the house, and that Ms Scheiff refused. He came to the house and, with Ms Scheiff’s approval, collected some kitchen items, and other everyday domestic items.

17 On 12 November there was a letter from Dr Nguyen’s solicitors, Keddies, which foreshadowed a claim under the Property (Relationships) Act 1984. It set out the basis on which Dr Nguyen asserted he was entitled to a substantial order for property adjustment. It put an offer of settlement. The precise details of that offer were, by agreement between the legal representatives, not before me on this application. The letter continued: “If we do not receive your response in that time period we expect to have instructions to commence proceedings in the Supreme Court.”

18 The letter continued:

“His position is that if you do not accept the above offer, our client requires you to vacate the property by 30 November 2001. He then intends to move into the property and continue to pay the mortgage payments. If you do not move out of the property by that date then we have instructions to commence proceedings for an injunction that you vacate the property without further notice.”

19 That same letter had also, when stating the basis of Dr Nguyen’s claim for an order under s 20, referred to a Mitsibushi Mirage motor vehicle which Ms Scheiff had had the use of during the relationship. The letter said that the car was leased, and the payments on the lease were made by Dr Nguyen. It said that the lease expires in December, at which time a residual payment of about $4 000 will be payable. The letter also asserted that the car was valued at about $10 000. I mention this because it provided an early warning of the need to pay out the lease in December.

20 On 15 December an event occurred at the house. It was witnessed by Mr Beran, a student, who is the son of a female friend of Ms Scheiff. He had been staying at the house since 5 December. He observed Dr Nguyen loading some items from the garage into his car. He observed Dr Nguyen going to the window of the bedroom in which Mr Beran slept, removing the flyscreen from outside the window and pushing the window wide open. Mr Beran walked into the bedroom at a time when Dr Nguyen was pulling himself up on the window. When Dr Nguyen saw Mr Beran, he jumped down. Mr Beran said to him that he had told Ms Scheiff about what was happening. Dr Nguyen then left.

21 I should say that Dr Nguyen’s going to the garage was, in itself, not any cause for concern, as there had been some pre-arrangement that he would pick up certain items from the garage. It is common ground that Dr Nguyen did not actually enter the house through the window.

22 On 17 December Keddies wrote to Neil Lawson & Co, who by then were acting for Ms Scheiff. Indeed, it appears that Neil Lawson & Co had been acting for Ms Scheiff at least since 5 December, as there was a letter of that date referred to in Keddies’ letter of 17 December.

23 By the letter of 17 December, Keddies sought access to the property so that Dr Nguyen could obtain certain goods to make his current accommodation more comfortable. They also sought undertakings from Ms Scheiff that she would not transfer, sell or dispose of any of the house contents and that she would not permit any other person to occupy the premises without written notice to Dr Nguyen. One would infer that it was Dr Nguyen’s contact with Mr Beran which had led to this latter request. The letter continued:

“For the time being, our client has instructed us not to pursue an order for your client to vacate the house. In view of this and that your client has made little financial contribution to the accumulation of assets, the request for this undertaking is appropriate and reasonable.”

24 I mention that this passage which I have just quoted seems to amount to a quite deliberate decision to allow the status quo to remain, well after Dr Nguyen had left the house, and at a time when legal proceedings were imminent.

25 On 17 December, Dr Nguyen sent an email direct to Ms Scheiff which said that he was in the process of cancelling various accounts at Greenwich that were solely in his name. These were the David Jones credit card, the gas company, Foxtel and Optus home internet account, a telephone service provider, a mobile telephone service provider, and the Sydney Morning Herald. Dr Nguyen said that he would continue to pay for Council and water rates until the property settlement had been reached.

26 On 18 December Dr Nguyen phoned Ms Scheiff, and told her that the car lease was due to expire, and that $4 000 was owing on the car. In light of the earlier letter which I have mentioned, this was not news to Ms Scheiff, but rather a reminder.

27 On 19 December Neil Lawson & Co wrote to Keddies. That letter referred to the events of 15 December, where Dr Nguyen was at the window of the house. It said, “This action by your client can only lead to our client obtaining the appropriate restraining order which so far she had declined to do.” It made clear that Ms Scheiff was prepared to allow Dr Nguyen to obtain items from the property if he forwarded a list but that she objected to Dr Nguyen seeking to operate on a “come and go” basis.

28 In relation to the car lease, Neil Lawson by that letter sought Dr Nguyen’s agreement to continue to make payments in respect of the car lease for a further year. It was asserted that the car was a gift to Ms Scheiff from Dr Nguyen. The letter gave limited assurances that,

“our client has not the present intention to transfer, sell or dispose of any of the contents of the house and desires to continue to remain in occupation of the premises. Our client does not seek to remove herself from the premises and will continue in occupation until such time as a resolution is effected, or alternatively the property sold.”

29 On 19 December Keddies wrote back to Neil Lawson & Co referring to the car, and saying that Dr Nguyen did not consider it necessary or appropriate for him to make the residual payment. It gave the name of the finance company, and the contract number, and said that if the payment was not made, the car would be repossessed. It said that Ms Scheiff could retain the car as part of the property settlement.

30 At some time during December Ms Scheiff began to pay half of the amount of the mortgage instalments which were falling due periodically. Prior to that time, Dr Nguyen had paid all the mortgage instalments.

31 On 16 January, the car was repossessed by the finance company.

32 On 25 January Keddies wrote to Lawsons. This was the first letter that had passed between the two firms since 19 December. It repeated the request for undertakings that had been asked for on 17 December, and made certain allegations about what had happened since Dr Nguyen had left the property.

33 It said that Dr Nguyen had been paying rent for a one bedroom flat at the rate of $370 per week and that Dr Nguyen could no longer afford to bear the expenses he had been bearing in addition to his rent, that he is a joint owner of the Greenwich property and wished to return to reside in that property pending property settlement.

34 Notice was given that Dr Nguyen would be moving back into the Greenwich property on 14 February 2002. A set of keys was requested. The letter continued:

“If your client does not do so, our client intends to have a locksmith change the locks and will provide a key for those locks to your client.
We are instructed to inform you that our client sees no reason why the Greenwich property cannot be occupied by our respective clients in a harmonious manner pending property settlement and that the house is of sufficient size for them to live quite separately for the majority of the time.
In respect of the car, our client has now paid the financier the residual outstanding and the car has been provided to him. He intends to sell it. He is prepared to propose that the car be returned to your client if she is prepared to move out of the Greenwich property until property settlement.”

35 On 30 January 2002 Dr Nguyen began proceedings for an order under s 20 of the Property (Relationships) Act 1984, and in the alternative, an order for appointment of trustees for the sale of the property under s 66G of the Conveyancing Act 1919. Certain declarations as to other items of property were also sought.

36 On 7 February Lawsons wrote to Keddies, seeking an undertaking that Dr Nguyen would not be coming back. Lawsons said:

“It is trite to say that the respective clients can live in the property in a harmonious manner pending property settlement when your client by his very actions over the past month has indicated a totally different position. The position of your client, at a time when our client was directly negotiating with the financier, to refuse to transfer the car to her, shows that he is attempting to manipulate a position, rather than to resolve the position with respect to the dispute between the parties. Your proposition that the car be transferred if our client moves out of the Greenwich property, once again shows the true colours of your client.”

37 There was also reference to the incident on 15 December.

38 On 11 February Keddies wrote back to Lawsons, saying that Dr Nguyen would move back on 16 February.

39 On 14 February Lawsons wrote to Keddies with a letter before action.

40 On 15 February a notice of motion, seeking the orders which I set out at the commencement of this judgment, was filed in Court. Counsel appeared for both Dr Nguyen and Ms Scheiff on that occasion. Consent orders were made for a timetable to enable prompt hearing of the notice, and, without admission an undertaking was given by Dr Nguyen that he would not enter or approach the property. That undertaking has been extended to 4 pm today.

41 In support of that application, Ms Scheiff said in her first affidavit, “I find the plaintiff’s conduct towards me to be intimidating and stressful. I consider that it would be intolerable having regard to our circumstances for the plaintiff and I to reside separately and apart under the same roof.”

42 The application before me is based on s53 of the Property (Relationships) Act 1984. That section provides:

“Part 5 Domestic violence and harassment
53 Granting of injunctions
A court may, on an application made to it by a party to a domestic relationship or in any proceedings between parties to a domestic relationship, whether under Part 3 or otherwise, grant an injunction:
(a) for the personal protection of a party to the relationship or of a child ordinarily residing within the same household as the parties to the relationship or who at any time ordinarily so resided,
(b) restraining a party to the relationship:
(i) from entering the premises in which the other party to the relationship resides, or
(ii) from entering a specified area, being an area in which the premises in which the other party to the relationship resides are situated,
(c) restraining a party to the relationship:
(i) from entering the place of work of the other party to the relationship, or
ii) from entering the place of work of a child referred to in paragraph (a), or
(d) relating to the use or occupancy of the premises in which the parties to the relationship reside.

43 The section appears in a part of the Act, Part 5, which bears the heading “Domestic violence and harassment”. Mr Richards, counsel for Dr Nguyen, submits that it is necessary for there to be violence or harassment before an order can be made under that section. Mr Richards referred me to a decision of Young J in O’Kane v Fogarty (1985) 2 NSWLR 649, and in particular a passage at 653 where his Honour concluded a discussion of s 53 by saying:

“In my view the general guideline to a Court when considering s53 is that if there has been a bashing and consistent harassment then ordinarily an injunction should be given.”

44 I do not read his Honour as there seeking to give an exhaustive account of the circumstances in which s 53 can apply.

45 Mr Richards also referred me to a decision of Hulme J in Leis v Dagwell (9 December 1993, unreported). A fragment of the judgment is quoted in CCH’s Australian Defacto Relationships Law paragraph 63-850. To understand that case, it is necessary to know the circumstances in which it came about. The man in the de facto relationship was both the plaintiff, and applicant on a notice of motion, in that case.

46 The principal relief claimed in the case was solely an order that the defendant vacate the premises, remove her personal possessions and thereafter remain away from the property, and costs.

47 Both parties were still in the house at the time of the application to his Honour. It was a case where the man had made most of the contributions to the purchase of the house.

48 The only legal guidance which his Honour was given outside the De Facto Relationships Act 1984 itself (that is the name that the Property (Relationships) Act 1984 then had) was the Interpretation Act 1987, and s 114 of the Family Law Act 1975 (Cth).

49 In the course of his judgment, Hulme J had come to the view that, as it was necessary that one of the parties leave the house, the preferable course was that the woman should leave. There was provision offered by the man for her accommodation. His Honour referred to a submission made for the woman, that, in relation to s 53(d):

“... that section is directed solely to circumstances of domestic violence and harassment. In that regard [counsel for the woman] points to the terms of the heading of Part 5 of the Act, to s35 of the Interpretation Act which requires that such headings be taken to be part of the Act, and to s38 of the Act which provides, inter alia, that a Court in exercising its powers under this Part (that is Part 3) may under sub-paragraph (h) and (k) grant injunctions.”

50 Section 38 of the Act which Hulme J here referred to, said:

“(1) Without derogating from any other power of a court under this or any other Act or any other law, a court, in exercising its powers under this Part may do any one or more of the following:
…
(h) make an order or grant an injunction:
(i) for the protection of or otherwise relating to the property or financial resources of the parties to an application or either of them, or
(ii) to aid enforcement of any other order made in respect of an application,
or both …
(k) make any other order or grant any other injunction (whether or not of the same nature as those mentioned in the preceding paragraphs) which it thinks it is necessary to make to do justice
(2) A court may, in relation to an application under this Part
(a) make any order or grant any remedy or relief which it is empowered to make or grant under this or any other Act or any other law, and
(b) make any order or grant any remedy or relief under this Part in addition to or in conjunction with making any other order or granting any other remedy or relief which it is empowered to make or grant under this Act or any other Act or any other law.”

His Honour went on at 6:

“Whichever of the two competing views advanced before me as to the width of s53 is adopted, I am still left with the firm impression that a deal of sloppy drafting has gone into the sections to which I have made reference.”
“The principle, however, that when in s53 the Court was given power to grant an injunction separate from that conferred under s38, Parliament was intending not merely to waste paper and print. It seems to me I should give operation to the heading to the Part of the Act in which s53 is included. I say this notwithstanding that the inclusion in the opening paragraph of the words, ‘whether under Part 3’ argues to the contrary.
Thus it seems to me that in this case, where the plaintiff alleges neither domestic violence nor harassment, it is not open to the Court to make an order under s53D. This being an interlocutory application, that is of course not a final view. But holding it as I do, it means that the plaintiff’s application for the interlocutory injunction in the suits as presently constituted should fail.”

51 That reference to “the suit as presently constituted” was a reference to the fact that the suit sought only the final relief which I have earlier outlined.

52 The plaintiff in the suit made application to amend the statement of claim to seek some orders for adjustment of property rights under s 20 of the Act, but the amendments that were sought were clearly deficient as a matter of pleading – orders were sought without there being an allegation in the body of the statement of claim of the facts and circumstances by reason of which the orders were sought.

53 His Honour therefore declined to allow that amendment to the statement of claim. His Honour went on to say, though,

“Though the plaintiff’s application today for the reason I have indicated fails, I have seen enough to indicate that if the evidence remains as it is, once the statement of claim is properly amended, the plaintiff, on an interlocutory application, has a high probability of success.”

54 That is, his Honour was predicting that, once amendments had been made to properly claim an adjustment of property rights under s 20, the plaintiff would have a high probability of success in obtaining an interlocutory injunction. That necessarily means that his Honour took the view that there would be power to make an interlocutory injunction of that type. That power might arise under s 38, or under the general powers of the court (expressly preserved by s 38(2)), of which s 23 of the Supreme Court Act 1970 (conferring all jurisdiction which may be necessary for the administration of justice in New South Wales), s 66 Supreme Court Act 1970 (conferring various powers to grant injunctions) and the inherent powers of the court would be the more important.

55 The Property (Relationships) Act 1984 was enacted following a report of the New South Wales Law Reform Commission, published in June 1983. As the decision of the Court of Appeal in Evans v Marmont (1997) 42 NSWLR 70 shows, that report can be looked to as an aid to the construction of the Act.

56 The report included a draft bill, which contained a version of s 53 not materially different from the form actually adopted by Parliament (report page 334-335). In discussing the reasons why they recommended such a provision, the Commissioners drew on the analogy of the Family Law Act 1975 (Cth). They refer at 258 to s 114(1) of the Family Law Act 1975 (Cth). In the form that s 114 had at that time, it read:

“(1) In proceedings of the kind referred to in paragraph (e) of the definition of "matrimonial cause" in subsection 4(1), the court may make such order or grant such injunction as it thinks proper with respect to the matter to which the proceedings relate, including:
(a) an injunction for the personal protection of a party to the marriage or of a child of the marriage;
(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage from entering the place of work or the place of education of a child of the marriage;
(d) an injunction for the protection of the marital relationship;
(e) an injunction in relation to the property of a party to the marriage; or
(f) an injunction relating to the use or occupancy of the matrimonial home.”

57 The reference to “proceedings of the kind referred to in paragraph (e) of the definition of “matrimonial cause”” is a reference to the paragraph which reads “proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of s114AB)”.

58 The report said, at 258:

“14.15 In practice, s114(1) has been construed liberally in the sense that it has been used to protect a party not only from abuse or threatened physical or mental harm, but also to prevent undue interference by one party with the other, or the children. In short, the concept of ‘personal protection’ under s114(1) extends to the prevention of non-violent molestation, harassment or persistent annoyance. The sub-section also authorises the making of orders relating to the use or occupancy of the matrimonial home. An order of this kind may have the effect of excluding a violent spouse from the home indefinitely.”

59 A footnote to the passage I have just quoted refers to several cases, one of which is Davis v Davis [1976] FLC 90-062. That case, a decision of the Full Court of the Family Court, included the following passages, at 75,309:

“In our view, provided that there are proceedings between the parties in circumstances arising from the marital relationship, sec. 114(1) gives the Court wide power to deal with the use and occupancy of the matrimonial home and to make such order as it thinks proper. This power may be exercised even if the home is solely owned by one spouse and where the other spouse has no legal or equitable interest in the home.”

And also:

“The criteria for the exercise of the power under sec. 114(1) are simply that the Court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.”

60 The Commissioners concluded this section of their report at page 262 by saying:

“... the law should provide the parties to a defacto relationship with further protection against domestic violence. The guiding principle is that, as far as practicable, defacto partners should have essentially the same range of remedies in respect of domestic violence and harassment, and protection against the same range of conduct as is available to married persons. This means that in New South Wales

· an aggrieved defacto partner should be able to seek a civil remedy in the nature of an injunction in respect of domestic violence in appropriate cases;

· courts should have power to intervene where the conduct of the defendant consists of harassment or molestation falling short of actual or threatened violence. We think that our specific recommendations should take careful account of the provisions of the Family Law Act since it is desirable, where possible, to promote consistency between Commonwealth and State legislation dealing with the same subject matter.”

61 Section 114 of the Family Law Act 1975 (Cth) has been further construed in a different case, also called Davis v Davis (1983) FLC 91-319. It was another decision of the Full Court of the Family Court. Their Honours approved the following passage:

“In my opinion, Page’s case demonstrates a softening of the Court’s attitude towards applicants for exclusive occupation orders. It seems to indicate that it is no longer necessary that such an applicant show that it is impossible or intolerable for him or her to continue in co-occupation of the house with the other party, or that there has been some conduct by the other party which justifies his exclusion from the home. All that is necessary, it seems, is that the Court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.”

62 It is correct that s 35 of the Interpretation Act 1987 requires the heading of an Act to be taken as part of it. Further, the report of the Law Reform Commission is a legitimate aid to construction of the Act. It is clear that one of the purposes of the enactment of s 53 was to enable this Court to make an order relating to use or occupancy of premises in which the parties to the relationship reside, in analogous circumstances to those in which the Family Court could do so.

63 Having had the opportunity to consider a broader range of aids to construction of s 53 than Hulme J was referred to, I have come to the same conclusion as his Honour, that the power conferred under s 53(d) is limited so that that power can be exercised only when there is a connection with domestic violence or harassment. The only basis on which this case was argued before me, was that it was s 53 which justified the grant of the injunction which Ms Scheiff seeks. Thus, it is by reference to s 53 which I will decide her claim. I express no view about the scope of the power available to the court under s 38, independently of s 53. I note that s 66 Supreme Court Act 1970 confers on the Supreme Court a power (which will be sparingly exercised) to grant an injunction to restrain apprehended assault, which might sometimes be availed of in a de facto relationship (Corvisy v Corvisy [1982] 2 NSWLR 557).

64 If one accepts, as on balance I think one should, that the power of s 53 ought be exercised for a purpose connected with “domestic violence and harassment”, that raises a question of what counts as “harassment”. The term is not defined in the Property (Relationships) Act 1984. Neither “harassment” nor any cognate of the word, appears anywhere in the Act other than the heading to Part 5.

65 The Macquarie Dictionary gives several meanings,

“1. To trouble by repeated attacks, incursions, etcetera, as in war or hostilities; harry; raid.
2. To disturb persistently; torment, as with troubles, cares, etcetera.”

It points out that the word derives from an old French word meaning “to set a dog on”.

66 It seems to me that if there is persistent disturbance of a person, by conduct, that can be sufficient to amount to harassment.

67 The first question to which I now turn, is whether a sufficient case has been made out to justify the intervention of the Court on an interlocutory basis. In making this decision, I note that the type of interlocutory relief that is sought here is of a different kind to the principal relief that is sought.

68 It is common enough for a Court to grant interlocutory relief which is of a different kind to that which is sought on a final basis. Examples are the various types of orders (like appointment of a receiver) which are designed to preserve an asset in dispute pending a hearing, orders (like a Mareva order) which are not necessarily directed to preserving some particular asset which is in dispute, but which are designed to stop the exercise of the Court’s process from being futile through the defendant disposing of his assets (Cardile v LED Builders Pty Limited (1999) 198 CLR 380) and orders like an Anton Piller order that seek to preserve evidence when there is a risk that the evidence will be destroyed or spirited away or hidden (Long v Specifier Publications Pty Limited (1998) 44 NSWLR 545 at 547-548).

69 The contention of Ms Scheiff about whether this is the type of case where the Court would consider granting an injunction are that over the last few months Dr Nguyen has harassed and intimidated her. It is said that his conduct concerning the motor car amounts to harassment, when he permitted the vehicle to be repossessed and then sought to use it as a bargaining chip in the proceedings he had begun. The removal of credit cards is likewise said to be harassment.

70 The threat of the plaintiff to come back into the premises is also said to be harassment. The plaintiff having entered the premises without permission, and removed some items, is said to be harassment, the event of 15 December is also relied on. The incidents of shouting that she deposes to, and threatening, are likewise relied on. It is common ground between the parties that at no time has there been any suggestion of physical violence.

71 Dr Nguyen disputes that there has been in the past, or will be in the future, any harassment. His counsel says that there are particular difficulties in deciding who to believe, in an interlocutory hearing as this, where there has only been very truncated cross-examination.

72 As an example, he points out how Ms Scheiff in her affidavit in reply gave a far more elaborate, and far more damaging to Dr Nguyen, account of the event of 1 November than she did in her first affidavit.

73 He points out that her solicitor’s letter of 5 December said nothing about this incident of 1 November and one would expect that complaint would have been made if the incident had the overtone of threat which Ms Scheiff’s second affidavit gives it. Likewise he says there was no complaint to the police about this incident.

74 I do not think that all of the acts which Ms Scheiff relies upon amount to harassment. For Dr Nguyen to withdraw credit cards, which enabled Ms Scheiff to run up bills which he had to pay, does not seem to me anything like harassment. Likewise, the failure to renew the lease of the car, or to pay out the residual, is not, of itself, harassment.

75 I think, however, that the use that is sought to be made of the car as a bargaining chip in the negotiations, combined with the making of the threat to move back into the house, does have some flavour of harassment to it.

76 The few incidents of raised voices are now some months old. They would not, of themselves, warrant the grant of an injunction.

77 More important, however, is the view that I have come to, that it is not necessary for there to be harassment already committed before there is power under s 53 to grant an injunction. Power exists under s 53 to grant an injunction on a quia timet basis.

78 In my view, if there was a sufficiently serious risk that harassment would occur in the future, that can justify the granting of an injunction, provided other considerations relevant to the balance of convenience also favour the granting of the injunction.

79 In my view, if Dr Nguyen, were to move back into the premises, there is a very real risk that there would be unpleasantness between himself and Ms Scheiff, on a repeated basis, such that she was disturbed persistently. The situation would be one which met the test stated by the Full Family Court in the second Davis v Davis case. (See paragraph 61 above.)

80 I therefore turn to consider the balance of convenience. One factor which Ms Scheiff puts is that the plaintiff has other accommodation, and can afford it. The evidence discloses that Dr Nguyen is currently living in a one bedroom apartment in Chatswood, with Ms Becky Wu. The apartment is leased in Ms Wu’s name, on a six month lease, which expired last Wednesday. That lease is now being extended on a month by month basis. Dr Nguyen pays all the rent at that apartment with no contribution from Ms Wu.

81 While the evidence about whether Dr Nguyen can afford it is skimpy, there is material from which I would infer that he is in employment in a job of some responsibility, he has been living away from the Greenwich property for quite some months now, and his outgoings have, at least to some extent, decreased during that time, as he is no longer bearing expenses run up by Ms Scheiff on credit card and other accounts.

82 Another factor is that there are no complications concerning children which need to be taken into account.

83 Ms Scheiff puts that it is impractical for them to both live in the home.

84 Dr Nguyen gave evidence that the Greenwich property has three bedrooms and two bathrooms, there is a study, lounge room, dining room, kitchen, laundry, terrace and lock up garage and there are at least three separate entrances to the property.

85 However, the layout inside the house is such that the bedrooms are directly opposite each other. Ms Scheiff says there are relatively ineffective locks to prevent a person entering another bedroom. The living area of the house is an open design. There is only a one car garage.

86 Although it is said that there are three entrances, one entrance is the main entrance at the front of the house. The other is the entrance through the laundry at the rear of the house that gives access to the backyard and the third entrance is from the dining room.

87 While there are these three entrances, once one is inside there is no way of dividing the house into two self contained parts. It seems to me that it is impracticable for them both to live in the house together.

88 As well, Ms Scheiff offers a series of undertakings. She offers the usual undertaking as to damages, an undertaking not to dispose of the contents of the house, an undertaking to pay Council rates, water rates and building insurance promptly after Dr Nguyen making the invoice for those accounts available to her, an undertaking to pay one half of the amount that the mortgagee requires from time to time, whatever that might be, to prevent the mortgage from falling into default (the undertaking is cast in this way because there is some unclarity in the evidence about what that amount is) and, finally, an undertaking to file a defence and cross-claim within seven days and thereafter prosecute the proceedings as expeditiously as possible, including joining in any application for expedition that Dr Nguyen wishes to make.

89 Dr Nguyen says the balance of convenience favours him. He says that he has a very strong claim in the principal proceedings. It is correct that the evidence which has been filed so far suggests that he has most of the equity in the property.

90 Ms Scheiff has put on no evidence which goes to this topic, and at a final hearing that situation might change, but on the evidence which is here today, it looks like Dr Nguyen has most of the equity in the property. As well, the relationship between the two of them was a comparatively short one.

91 It is well established that the strength of the case is a factor which can be taken into account in assessing the balance of convenience.

92 Dr Nguyen also points out that he continued to pay for large numbers of the joint expenses for some months after the relationship was over. While that appears true, I have difficulty in seeing how it impacts on the balance of convenience about whether an injunction could be granted today. Those payments might count as contributions by Dr Nguyen which can be taken into account in making an order under s 20. If so, they provide an additional reason why it seems Dr Nguyen has a strong case. I cannot see that they have relevance beyond that.

93 Dr Nguyen points out that Ms Scheiff has not put on any evidence about any financial disadvantage she would suffer in moving out of the property. Dr Nguyen says that she had the onus of convincing the Court that it is appropriate for an injunction to be granted, and she has chosen not to put this important part of the relevant facts before the Court.

94 Dr Nguyen points out that she filed a supplementary affidavit on 26 February, when she had another chance to put these factors before the Court, but failed to do so.

95 I accept that that is the state of the evidence. The failure of Ms Scheiff to show that she would suffer disadvantage in moving out of the property is a factor which must be weighed in the balance of convenience.

96 Dr Nguyen also says that, separately from whether he is right in saying that he has a strong claim in the principal proceedings, he has a property right which should not be taken away from him without good cause. He says that even before determination of the principal proceedings, he is a joint tenant of the property, and ordinarily a joint tenant is entitled to the use and enjoyment of the property.

97 That is, undoubtedly, a consideration which must be taken into account. However, it cannot be decisive because by enacting s 53 Parliament has, in effect, given the Court the power to override such property rights, when the circumstances of the case require it.

98 The single most important factor in the balance of convenience, it seems to me, is that the granting of an injunction would preserve the status quo. It is now a little over seven months since Dr Nguyen lived in the premises. Even if he is right in saying that, initially, he left on the basis that he and Ms Scheiff would have a trial separation only, there have been later events, like the letter of 17 December 2001 which I have mentioned earlier, where, at a time when proceedings were imminent, and at a time when it must have been clear that the separation was no longer a trial, a deliberate decision was taken not to pursue an application for Ms Scheiff to vacate the house.

99 The usual rule, where property is owned by two people jointly and one excludes the other, is that the person who does the excluding should pay an occupation fee. The law is summarised in the decision of Beasley JA (with whom Stein JA agreed) in Biviano v Natoli (1998) 43 NSWLR 695, as follows:

“The rights of co-owners of property are to equal occupation of the land, neither one nor the other owning any particular parcel of land: see Megarry & Wade, The Law of Real Property, 5th ed (1984) Stevens, London at 422; Jacobs v Seward (1872) LR 5 HL 464; Bull v Bull [1955] 1 QB 234; Jones v Jones [1997] 1 WLR 438.
A tenant in common is entitled to exercise acts of ownership over the whole of the common property without liability to be called upon to account in respect thereof: Luke v Luke (1936) 36 SR(NSW) 310; 53WN (NSW) 101. This general rule will be displaced, however, where a tenant in common has wrongfully excluded a co-tenant from exercising the right to occupation. At common law a co-tenant so excluded could sue for ejectment and for mesne profits: Goodtitle v Tombs (1770) 3 Wills KB 118; 95 ER 965, and could also bring a partition suit to charge the occupying co-tenant with an occupation rent: Pascoe v Swan (1959) 27 Beav 508; 54 ER 201. Long Innes CJ in Eq in Luke v Luke said (at 314; 102): ‘... by excluding [a] co-owner from the exercise of his legal rights the tenant in common who so excluded his co-owner has committed a legal wrong.’
Long Innes CJ in Eq rejected the proposition that a co-owner who remained in occupation of property was, by that circumstance alone, subject to an occupation fee. An entitlement to an occupation fee only arose where there was conduct sufficient for the Court to infer a denial of the claimant’s title. See Chieco v Evans (1990) 5 BPR 11, 297; Jones v Jones (at 441), per Lord Denning MR. In Forgeard v Shanahan , Meagher JA reiterated the principles which govern the right to claim an occupation fee. His Honour stated (at 223):
‘... Turning to the liability of a co-owner in occupation to pay an occupation fee, the position at law is fairly clear. He was not liable unless he excluded his co-owner, in which case he rendered himself liable in ejectment for the mesne profits, or, if he constituted himself a bailiff, in which event he would be liable in an action of account, like any other bailiff: Re Tolman’s Estate (1928) 23 TAS LR 29 at 31; Rees v Rees [1931] SASR 78 at 80-81. Indeed, the whole bias of the law against making a co-owner in occupation liable to account is precisely based on the rationale that if such a liability were to exist, a co-owner could, by abstaining from entering into occupation, turn his co-owner into an involuntary bailiff. As far as equity is concerned, an occupation fee will be exacted in at least two circumstances: first, in a partition suit (or related litigation): if there has been an exclusion, the tenant in occupation will be charged with an occupation fee (see, for example, Pasco v Swan (1859) 27 Beav 508; 54 ER 201); this is an example of equity following the law; and secondly, if the owner in occupation claims an allowance in respect of improvements effected by him, equity will permit such an allowance only on terms that he is accountable for an occupation fee – this is an example of he who comes to equity having to do equity: see Teasdale v Sanderson (1864) 33 Beav 534; 55 ER 476.’”

100 Notwithstanding that general law rule, Biviano v Natoli held that there was no ouster or exclusion of the type referred to in that rule where one co-owner obtains an order excluding the other from the property under an express statutory power like an apprehended violence order made under s 562 of the Crimes Act 1900 – see Biviano v Natoli at 702-703. That reasoning would apply if an injunction were to be granted under s 53 in the present case.

101 Here, however, Ms Scheiff has done more than merely apply for a Court order. As well, she has changed the locks. That is something which, in some circumstances, can amount to an exclusion, of a kind which requires, under general law principles, an occupation rent to be paid (see Beresford v Booth [1999] SASC 166. At the moment, I am not able to decide, on the evidence and argument before me, whether the present is such a case. However, the evidence and argument before me at least shows that there is a realistic practical possibility that, at any trial, it will be held that Ms Scheiff has excluded Dr Nguyen from the property.

102 The undertaking which she offers, to pay the listed outgoings and half the mortgage, might possibly be less than a commercial occupation rent. I cannot make any more precise finding than that on the evidence before me as there was no evidence about the rental value of the property, only about what its purchase price was some years back.

103 This raises a possibility that, week by week pending the trial, Ms Scheiff will be paying less than the amount that, after a full examination of the circumstances, a court might hold she ought pay. It is no more than a possibility, especially bearing in mind that she will be paying the whole of the outgoings other than the mortgage.

104 Section 20 of the Property (Relationships) Act 1984 enables the Court to adjust the interests of parties in property “as to it seems just and equitable having regard to” two different types of contributions with which are listed in that section.

105 In Roy v Sturgeon (1986) 11 NSWLR 454 Powell J at 466 took the view that the only contributions which the Court could look at in effecting this exercise, were ones made during the period of the relationship.

106 However, that view has since been departed from. Bryson J in Foster v Evans (1997) DFC ¶ 95-193 at 77681 disagreed with it. In Jones v Grech [2001] NSWCA 208; (2001) DFC ¶ 95-234 Davies AJA at [24] - [26] and Ipp AJA at [77] - [82] and held that contributions made prior to the commencement of the de facto relationship could be taken into account.

107 In Green v Robinson (1995) 36 NSWLR 96 Cole JA said at 115-116:

“Further, in assessing whether it will exercise the s20 power to adjust regard is to be had to contributions made to the date of the application. The underlying presumption of s20 is that the defacto relationship has ceased, the parties have joint or several property, and it may be just and equitable to adjust those existing property entitlements having regard to past contributions of the type described so that the financial relationship between the parties may be finalised: see s19.”

108 While neither of the other Judges of Appeal in Green v Robinson agreed or disagreed with this proposition I find it, with respect, persuasive. It is a logical corollary of the Court of Appeal in Jones v Grech rejecting the limitation that Powell J had found and permitting pre-relationship contributions to be taken into account, that post relationship contributions can also be taken into account.

109 Further, when s 19 of the Act provides:

“In proceedings for an order under this Part, a Court shall, so far as is practicable, make such orders as will finally determine the financial relationships between the parties to a domestic relationship and avoid further proceedings between them.”

there is good reason to take any post-relationship contributions into account.

110 If it turns out that, during the period that she is in the property, Ms Scheiff is paying less than she should to occupy it, that will, it seems to me, amount to the conferring on her of a contribution towards her welfare, which will be able to be taken into account by the Court in making any adjustment of financial interests under s 20.

111 When there is both that power of the Court to adjust the property interests, taking into account any extent to which she might be paying somewhat too little to stay in the property right now, and when there is also her undertaking as to damages, it seems to me that the undertakings which have been offered will adequately protect Dr Nguyen, should there be an order that, in effect, results in him having the right to the premises.

112 Also, the case appears to be at the comparatively simple end of the spectrum as de facto relationship cases go, involving as it does a short relationship, no property other than a house and its contents, and no children. It ought be possible for the case to be ready for trial comparatively quickly.

113 In the circumstances, I would make the orders which are sought in the notice of motion if Ms Scheiff were to proffer to the Court the undertakings which I have earlier outlined.

Upon the defendant, by her counsel, proffering to the Court:

- the usual undertaking as to damages,
- an undertaking not to dispose of the contents of the house at 20 Valleyview Crescent, Greenwich or any of them,
- an undertaking to pay one half of the amount which the mortgagee requires to be paid to prevent the mortgage from falling into arrears,
- an undertaking to pay Council rates, water rates and building insurance promptly after the plaintiff making the invoices for those accounts available to her, and
- an undertaking to file a defence and cross-claim within seven days and thereafter prosecute the proceedings as expeditiously as possible, including joining in any application for expedition that the plaintiff wishes to make,


I order:

1 That until the hearing of the suit or further order, the plaintiff, by himself, his servants and agents, be restrained from entering on or approaching the property situated at 120 Valleyview Crescent, Greenwich, save at the express invitation of the defendant.

2 That until the hearing of the suit or further order, the defendant be granted the exclusive use and occupation of the property situated at 20 Valleyview Crescent, Greenwich.

3 I reserve the costs of the present motion to be determined by the trial judge.

**********

Last Modified: 09/06/2002