Pohl v Hallett-Shiels

[2024] NSWDC 342

District Court

New South Wales

Medium Neutral Citation:	Pohl v Hallett-Shiels [2024] NSWDC 342
Hearing dates:	10-11 April 2024
Date of orders:	11 April 2024
Decision date:	11 April 2024
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Verdict and judgment for the defendant against the plaintiff.
Catchwords:	Claim for debt – Claim for some debt made in proceedings in the Family Court of Australia in proceedings in which Plaintiff intervened and Defendant was a party – Debt claimed in Family Court proceedings was repaid or compromised – No evidence of additional outstanding monies.
Legislation Cited:	Family Law Act (1975) (Cth)
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – Steven Pohl Defendant – Carolyn Hallett-Shiels
Representation:	Counsel: Plaintiff – Self-Represented. Defendant – Bateman, M. Solicitors: Plaintiff – Self-Represented. Defendant – Self-Represented.
File Number(s):	2022/00358763
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: The plaintiff, Mr Steven Pohl, is unrepresented. He filed a Statement of Claim in this Court on 28 November 2022. In it, he claimed $191,371 plus interest of $101,432. Once the filing fees and service fees were added to those claims, the total claimed in the Statement of Claim was $293,988.

2. The pleading contained in the Statement of Claim was clearly not made by anybody who knew how to plead as required by the Rules of Court. However, I have ascertained from the 29 paragraphs contained in the Statement of Claim that the following paragraphs are relevant. They are these:

“1.   I am the plaintiff, Steven Pohl, who is living in Camden, New South Wales, and loaned [sic] money to the defendant.

3.   The defendant was first loaned money on 25-11-2020 when her debit card was declined.

5.   Money was loaned up until the early part of January 2013.

6.   This happened on several occasions, and then she started asking for more loans due to her financial situation.

11.   There is a signed agreement between the parties in dispute.

17.   The first letter of demand was sent in 2018 by C.A. Williams, a solicitor based in Camden.

18.   The last letter of demand was sent on 24 February 2022 and no response has been received to date.

29.   The plaintiff claims against the defendant

(a) the total debt in the sum of $191,371.

(b) interest on the above amount should be based on the current interest rate table noted online NSW Local Court.

(c) the interest rate that should be applied

(d) the fees and costs of this claim.”

3. The defendant is a solicitor. She acts on her own behalf. However, for the purpose of the hearing that has been conducted before me, she retained counsel.

4. A defence passed under the seal of the Court on 10 January 2023, but that ought not to have occurred as the defence was not signed by the defendant as a solicitor and the affidavit verifying the defence was not executed at all. Nevertheless, the matter has remained in the list of this Court until it was set down for hearing by the Judicial Registrar.

5. The plaintiff has filed and served but one affidavit, an affidavit sworn on 5 October 2023 and filed on 6 October 2023. The plaintiff sought to tender another document which was not annexed to any affidavit and had not been served and the tender of that document was objected to and rejected as it needed to be proved by affidavit.

Family Court Proceedings

6. There have been earlier proceedings in the Family Court of Australia as in that court the plaintiff, who was not a party to a marriage, was joined as an intervenor at his own request. A judgment was delivered by Fowler J, on 24 October 2013.

7. The plaintiff has annexed that judgement to his affidavit as annexure SFP11. It appears that there was an appeal from the orders made by Fowler J. His Honour’s decision was set aside by the Full Court. The matter was then settled on 27 March 2017 and orders were made, by consent, by Johnston J on 27 March 2017. Those orders are annexure SFP15 to the plaintiff’s affidavit.

8. The background to the case can be explained by reading certain parts of the reasons for judgment delivered by Fowler J on 24 October 2013. The proceedings had been commenced in the Family Court of Australia in March 2010 between the current defendant, who was the applicant wife in those proceedings and her former husband, to whom I will merely refer as the ‘respondent husband’ or merely ‘the husband’.

9. In April 2013, the current plaintiff was granted leave to intervene in the proceedings. In the introduction to his reasons, Fowler J said this:

“The intervenor claims to be a creditor of the wife and asserts that he is owed money, which should have a priority claim on the assets of the parties prior to distribution. The intervenor’s claim is brought under s90AE and 90AJ of the [Family Law Act 1975 (Cth)]”

10. At [22], his Honour said this:

“In April 2004, the wife acquired a property at 49 Organs Road, Bulli (‘the Bulli property’) for the sum of $500,000 with the assistance of a mortgage in the sum of $169,000. The remainder of the purchase price came from the sale proceeds of a property which she previously owned at ... Wattle Grove...”

11. His Honour went on to record that the defendant and her husband commenced cohabitation in August 2004. They married on 6 April 2008. They were finally separated in August 2009. At [35] of his Honour’s reasons is this:

“In March 2010, the wife commenced a relationship with the intervenor. The intervenor described their relationship as one which was ‘on again off again’. This is consistent with the wife’s description of the relationship.”

12. After [59] of his judgement, Fowler J provided a heading, “The intervenor’s claim,” and thereafter the judgment contains this matter:

“[60] The Court finally turns to consider the intervenor’s claim, which is brought pursuant to Part VIII AA of the Act, specifically s 90AE.

[61] The intervenor swore an affidavit in the proceedings, filed on 12 April 2013, and the Court made a ruling that so much of the affidavit that does not relate to the intervenor’s claim for $62,000 should not be read.

[62] The intervenor is a builder by trade. He met and commenced a relationship with the wife in around March 2010. The intervenor submits that it was an ‘on-again off-again’ relationship and that he wanted more from the relationship than the wife was prepared to give. This seemed to be supported by the wife’s evidence.

[63] During the relationship, the wife resided at the Bulli property and in other leased premises, save for one fortnight when she resided at the intervenor’s house in Camden due to the poor condition of the Bulli property.

[64] The Bulli property was to be sold in June 2011 for $515,000, but the sale did not settle due to there being a pest problem at the property. In his affidavit filed on 12 April 2013, the intervenor deposes as follows in relation to that sale:

‘A buyer paid the deposit, but the sale fell through due to a negative pest report which said words to the effect that the house was infested with termites.’

[65] In June 2011, Mr Adam Kidson, a friend of the intervenor’, provided to the wife a quote for the repair work, which in his opinion needed to be done. His estimate (Exhibit 22 in these proceedings) of the repair costs was $189,200, inclusive of GST, and was described in the following terms:

“Estimation of costs to repair structural damage resulting from termite infestation, damage resulting from poor building practices during original construction (water entry at roof, lower walls, and failure of bathroom membranes) and deterioration resulting from lack of maintenance.”

[66] Some remedial work was completed. However, the intervenor submits that more than $140,000 worth of work was still required to be done to the property.

[67] The intervenor lent to the wife $26,508 to be paid to Mr Kidson for emergency repair work. The intervenor asserts that the payment was a loan, not a gift. That is supported by the wife’s evidence and is evidence which the Court accepts.

[68] In September 2011, the intervenor was paid $21,314 pursuant to interim orders of the Court. He asserts that he used those funds to provide further loans to the wife. The wife conceded in her oral evidence that the intervenor loaned her further money to pay outstanding bills. The Court accepts that evidence.

[69] In around August 2012, the wife was informed that preparations were being made by Westpac Bank to repossess the Bulli property The intervenor agreed to assist the wife by advancing funds to pay her mortgage payments, including arrears, on the promise that it would be repaid by her stock. The intervenor paid the following sums to cover the Bulli property mortgage repayments and arrears:

(a) $5,635 on 22 August 2012

(b) $5,635 on 24 September 2012

(c) $6,100 on 26 October 2012.

[70] In August 2012, the wife and the intervenor had a discussion about how the intervenor might recover the advances he had made by sale of the Bulli. It was agreed that the property should be renovated and sold to gain maximum profit. The intervenor submits that ‘the profit would then be included in the matrimonial asset pool’ and that he ‘was reliant on this money being repaid.’ After the wife informed the intervenor that she could not afford the renovation work, the intervenor agreed to advance more funds to her for the renovations. The intervenor submits that he offered his ‘financial assistance and business expertise, as a commercial arrangement, pursuant to a verbal agreement ... that the debt would be paid in full by the wife.’

[71] The repairs and renovations to the Bulli property commenced in August 2012 in accordance with the agreement, the intervenor arranged the work to be done for the wife and took the role as project manager. He paid subcontractors to do much of the work and asserts that the rates charged were reduced rates. In her oral evidence, the wife conceded that the intervenor did the work cheaply.

[72] In December 2012, the property sold for $535,000.

[73] In January 2013, the intervenor asked the wife to repay him in full by drawing down from her superannuation fund stock. The wife refused to do so. In February 2013, the intervenor received $20,905.55 by way of an interim order of the Court as part payment for the work completed on the Bulli property.

[74] The intervenor asserts that the amount still owed to him is $62,000. He sets out details of how the figure was reached in his affidavit material, and this is summarised in his written submission as follows:

“i. Material an (sic) subcontractors component: $44,885.10.

ii. Labour component: $19,922.

iii. WBC mortgage repayments: $17,370.

1. Total $82,177.68.

(b) Payment on 9 September 2011 [$21,314]”

Mr Pohl’s debt was not reduced by this amount as he subsequently reloaned the money to the wife to repay some of her outstanding debts as provided in oral evidence by the wife and Mr Pohl.

“(c) less payment received on 20 February 2013, $20,905.55

Total debt owed $61,271.73

Rounded up: $62,000.”

[75] The wife has conceded in her oral evidence and in her submissions that the sum of approximately $62,000 is owed to the intervenor. The husband has reluctantly conceded that he has benefited from the intervenor’s work. He submits, however, that any funds advanced by the intervenor were advanced ‘because he was in love with Ms Hallett, and he believed they were in a relationship.’ The Court does not agree with that submission.

[76] The intervenor impressed the Court as an honest witness and a man who had assisted the wife at a time of need on the clear understanding that he was to be repaid on sale of the property. The price of the work that was done is supported by the original quote of Mr Kidson.

[77] There was no effective challenge to the value of the work done, although some attempt was made in that regard. The Court finds that the husband also benefited from the intervenor’s payment of the mortgage repayments and arrears to avoid a mortgagee sale. It seems to the Court that the sum should be repaid and should be a charge on the proceeds of the sale of the Bulli property.”

13. His Honour went on to discuss a proposed method of repaying the monies owing to the current plaintiff, $62,000. In essence, his Honour made orders that the current defendant and her former husband pay to the current plaintiff $62,000. On 19 December 2013, Aldridge J made orders in the Family Court that, on condition that the husband filed a written undertaking diligently to prosecute his appeal from the orders made by Fowler J on 24 October 2013, the orders that his Honour made were stayed. His Honour ordered that the current defendant pay one half of the current plaintiff’s costs, as agreed or assessed on a party-party basis.

14. One of the claims made by the plaintiff in this Court is for the recovery of those costs, albeit that the costs were not agreed between the plaintiff and the defendant, nor have they been assessed by a costs’ assessor. The plaintiff merely attached to his affidavit the claim made by his solicitor to the defendant’s solicitor for those costs. As I have already mentioned, an appeal was allowed by the Full Court, and the matter was remitted for a further trial. However, the parties reached an agreement. That agreement is contained in consent orders made on 27 March 2017, which can be found at annexure SFP15 of the plaintiff’s affidavit.

15. Essentially, they provided that the plaintiff was to receive the sum of $43,000 from the proceeds of the sale of the Bulli property. The second order made by consent is that all cost orders were discharged. The seventh order made was that all outstanding applications be dismissed, and the eighth order was that the parties were to pay their own costs of, and incidental to, the proceedings. The final order was, in fact, a notation that the current plaintiff acknowledged and agreed that, at the date of those orders made on 27 March 2017, the respondent husband owed the current plaintiff “no monies”.

16. The current plaintiff appeared to be unaware that the final orders made in the Family Court set aside the earlier cost orders that had been made. The plaintiff was, in fact, paid the $43,000. If my mathematics be correct, which is always problematical, the plaintiff received, by way of the two interim payments and the final payment of $43,000, the sum of $91,806.17. According to the plaintiff’s affidavit, the sum of $43,000 was paid to him on 27 March 2017. A list of the payments made by the plaintiff to the defendant is annexure SFP17 to the affidavit of the plaintiff sworn on 5 October 2023. Of some significance is the heading. The heading is this:

“Money loaned to Carolyn Hallett - Exhibit K.”

17. That, to me, indicates that the document itself was probably generated for the purpose of the Family Court proceedings. It lists payments made between 25 November 2010 and 9 February 2013. The total of the sums claimed is $53,803.46, a sum substantially less than the $91,806.17 which the plaintiff had been paid during the hearing of the proceedings in the Family Court of Australia. Many of the payments relate to the Bulli property, but a number of them do not. For example, the first payment was a payment of $119.95 made to a Saddlery, at Camden. I believe from what I have read that the defendant, is a horse woman who had a number of horses.

18. The next item was payment of $41.26 for a driver’s side mirror for a KIA Carnival motor car which, from what I read, was a motor vehicle owned by the defendant. The next item is a payment to Foxtel Management of $105. The next item claimed was for the paying of a fine to the State Debt Recovery Office, a fine imposed for towing an unregistered camper trailer. As I understand what the plaintiff told me, the fine was incurred by him when he was towing a camper trailer owned by the defendant. There are a number of very minor payments for various items throughout the period that annexure SFP17 covers.

19. What was actually claimed by the plaintiff in the Family Court proceedings has not been put before me. His affidavit was not put before me, albeit that the written submissions by his counsel in the Family Court proceedings were put before me. They are annexure SFP10 to the plaintiff’s affidavit of 5 October 2023. The submissions have been signed by Ms Louise Mathias of counsel who was acting for the plaintiff in the Family Court proceedings.

20. Paragraph 18 of those submissions is this;

“On 9 September 2011, Mr Pohl was paid $21,314 pursuant to interim orders made in the Family Court. Mr Pohl subsequently provided further loans to the wife with the money paid to him by the interim Family Court orders. The wife conceded in oral evidence, Mr Pohl loaned further money to her to ‘pay some of my outstanding bills.’”

21. I again point out that despite the amount claimed in the Statement of Claim, the only sums which the evidence before me establishes are that the plaintiff lent to the defendant the sums of money in annexure SEF17 to the affidavit of the plaintiff of 5 October 2023, to which I have already referred. The original defence was amended yesterday when I permitted the defendant to annex to the original defence a proposed amendment to the defence, which contains two further paragraphs. The first amendment, the two additional paragraphs are these:

“29A. That the plaintiff’s action is not maintainable by virtue of being estopped by entering into final consent orders in another court of competent jurisdiction in respect of the same action.

29B. That the plaintiff’s action is not maintainable by virtue of being estopped by the plaintiff failing to pursue the action in previous proceedings in another court of competent jurisdiction in which the plaintiff and the first defendant were both parties.”

Judgment

22. It is abundantly clear that the plaintiff intervened in the Family Court proceedings and made claims for repayment to him of moneys that he lent to the plaintiff. As I said, he has recovered, in those proceedings, $91,806.17. The only evidence before me of some further debt is what he was claiming for the interim costs order made by Aldridge J in the Family Court of Australia, but that order was set aside by the final orders entered by consent in the Family Court on 27 March 2017.

23. Ex facie, what the plaintiff is claiming was claimed, or could have been claimed, in the Family Court proceedings, and insofar as those proceedings have been settled by consent, the plaintiff is now estopped from claiming the same money in these proceedings, and is estopped from claiming monies under the costs order that was, in fact, set aside. The plaintiff sought to introduce into evidence a further document showing how he had calculated the money which he is claiming in these proceedings, but he had not annexed that to any affidavit, and the document was clearly inadmissible. It needed to be explained. Its provenance needed to be established, and that had not been done, as required by the orders made earlier by this Court.

24. Furthermore, if there were any monies that were not claimed in the Family Court proceedings, there is no explanation of why he did not claim those monies in the Family Court proceedings, and no evidence that any actual claims that he made in the Family Court proceedings were not the subject of the rulings which were made by Fowler J, and were not covered by the final consent orders made in the Family Court on 27 March 2017. For those reasons, there must be verdict and judgment for the defendant against the plaintiff. I so rule.

**********

Decision last updated: 12 August 2024