Porter and Porter and Ors
[2009] FamCA 1231
•14 December 2009
FAMILY COURT OF AUSTRALIA
| PORTER & PORTER AND ORS | [2009] FamCA 1231 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Where the Wife’s statements of claim have been struck out – Where the Wife failed to re-plead her case – Where the Wife’s case at its highest does not give rise to action as against the Second and Third Respondents – Application for summary dismissal acceded to |
| Family Law Rules 2004 (Cth), rules 10.12 and 10.14 |
| Giumelli v Giumelli (1999) 161 ALR 473 Muschinski v Dodds (1985) 160 CLR 583 |
| APPLICANT: | Mr Porter |
| RESPONDENT: | Ms Porter |
| SECOND AND THIRD RESPONDENTS: | Mr and Mrs Porter (Snr) |
| FILE NUMBER: | BRC | 4788 | of | 2008 |
| DATE DELIVERED: | 14 December 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Barry J |
| HEARING DATE: | 7 December 2009 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr O’Donnell of Egan Simpson appeared for the Applicant Husband |
| COUNSEL FOR THE RESPONDENT: | Mr Hamwood of Counsel appeared for the Respondent Wife |
| SOLICITOR FOR THE RESPONDENT: | Reaburn Solicitors |
| COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: | Ms Carew of Counsel appeared for the Second and Third Respondents |
| SOLICITOR FOR THE RESPONDENT: | John Nagel & Co |
Orders
The Wife’s claim against the second and third respondents’ as detailed in her response filed 5 February 2009 is summarily dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Porter & Porter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 4788 of 2008
| MR PORTER |
Applicant
And
| MS PORTER |
Respondent
| MR and MRS PORTER (SNR) |
Second and Third Respondents
REASONS FOR JUDGMENT
Mr and Mrs Porter (Snr), the Second and Third Respondents in these proceedings are the registered owners of a farm in the northern rivers region of New South Wales which they acquired in 1993.
At all times since then this property has been occupied by their son, Mr Porter, who is the Applicant in the substantive proceedings before the Court.
The Applicant husband and the Respondent, the wife, commenced cohabitation in late 2000. They married in July 2004.
At all times throughout the relationship they remained living on the farm.
Separation occurred in February 2008 when the wife left the property with the party’s two children aged 7 and 6.
In about May 2008 the Husband instituted proceedings limited to children’s issues only. By a response document filed on 5 February 2009 the Wife sought orders in the following terms:
“1. As to the Applicant
(a)An order that he pay the Applicant such amount by way of property settlement as to the Court may seem meet;
(b)Costs.
2.As against the Second and Third Respondents:
(a)A declaration that the Second and Third Respondents hold their interest in the property situate at and known as [the Northern Rivers farm] in the State of New South Wales (the “[farm] property”) property on trust for the Applicant and the First Respondent jointly;
(b)An order that the Second and Third Respondents do all things and execute all documents necessary to convey to the Applicant and First Respondent all their right, title and interest in and to the [farm] property;
(c)Such further Orders as to the Court may seem meet;
(d)Costs.”
For the Wife, reliance was placed solely on her affidavit filed 5 February 2009 with particular reference to paragraphs 72 to 75. These paragraphs are in the following terms:
“72. [The husband] informed me that each of his sisters and himself had received a gift from his parents. I recall that [the husband] informed me that each of his sisters received $350,000.00 which was placed as cash into a trust fund. Instead of receiving cash, [the husband’s] father purchased the [farm] property for [the husband] although the property remained in [the husband’s] father’s name. [The husband] informed me that his Dad thought it was best to set it up that way and that’s what happened.
73. Again in 2005 I expressed concern to [the husband] about the ownership of the property. I was fearful that [the husband’s] father would sell the property out from underneath us because it was in his name. I said to [the husband] that he and I spent 24 hours a day 7 days a week working the property and improving it and we might not see any benefit from it. [the husband] assured me that the property was his and that his Father would not and could not do anything without him. When I expressed concern about the children’s financial future if something was to happen to us, [the husband] assured me that the property would be theirs (sic) one day.
74. During the relationship we regularly discussed with [the husband’s] parents our plans for the property, including building a better home at the top of the property, our “castle” we used to call it which would maximise the properties views and aspects. At no time did [the husband’s] parents say or do anything which led us to believe that we were wrong in our assumption that the property was ours.
75. At all times that [the husband] and I lived on the property, the business operated by [the husband] initially and [the husband] and I jointly later met all costs associated with ownership of the property including but not limited to local government rates and levies, insurances, maintenance and upkeep expenses.”
By way of an application in a case filed 21 October 2009 the Second and Third Respondents seek orders in the following terms.
“1.The First Respondent’s claim so far as it relates to the Second and Third Respondents be struck out.
2. That the First Respondent pay the costs of the Second and Third Respondent of and incidental to the proceedings at an amount to be fixed by the Court or to be taxed.
3. Such further or other Orders the Court deems meet.”
Prior to the transfer of this application to this jurisdiction there had been quite extensive proceedings in the Federal Magistrates Court. On 27 February 2009 FM Spelleken ordered, inter alia, (paragraph 22) that the Respondent Wife file a statement of claim within 14 days with regard to her application for a declaration.
The statement of claim in accordance with this order was filed on 18 March 2009 (refer JAN-2 to the affidavit filed 21 October 2009 by John Nagel the solicitor for the Second and Third Respondents).
As a result of correspondence which passed between the solicitors, an amended statement of claim was delivered. The amended statement of claim is annexure 7 to Mr Nagel’s affidavit. On 18 May 12009 by paragraph 2, FM Spelleken ordered that the First Respondent file and serve a further amended statement of claim by 4pm on 1 June 2009.
The further amended statement of claim was subsequently filed on 2 June 2009. On 3 August 2009, FM Spelleken ordered that the further amended statement of claim of 2 June 2009 be struck out and the Wife be given leave to re-plead her claim as against the Second and Third Respondents by 4pm on 15 September 2009. The application of the Husband filed 28 May 2008 the response of 5 February 2009 and the reply filed 29 June 2009 were, by paragraph 4, transferred to this Court.
It is common ground that the Wife had not re-pleaded the claim as against the Second and Third Respondents by the 15 September 2009 pursuant to the order of FM Spelleken.
The material relied on by the Second and Third Respondents consisted of:
·Application in a case filed 21 October 2009;
·Affidavit of John Nagel filed 21 October 2009;
·Response filed 5 March 2009;
·Affidavit of the husband’s father (the Second Respondent) filed 5 March 2009;
·Orders of Federal Magistrates Court 27 February, 18 May, 3 August, 29 October 2009 (order of 29 October 2009 is by a registrar of this court listing the current application for hearing).
For the Wife, Counsel argued the Second and Third Respondents must establish the claim against them is doomed to fail. This was not a matter of contention.
I accept that the Wife’s case is to be assessed taken at its highest and without regard to any material filed by the Second and Third Respondents.
In written submissions produced on behalf of the Second and Third Respondents it is argued:
“8. The wife has now failed in her three attempts to plead a cause of action against the second and third respondents and her most recent further amended statement of claim was struck out on 3 August 2009. The wife was afforded until 15 September 2009 to re-plead her claim but has failed to do so.
9. The wife’s claim at its highest is that she relied upon representations made to her by the husband that he had or would have an interest in the farm.”
I propose to hold the Wife cannot rely on statements made to her by her husband as to his beliefs to create some form of trust where such statements have not been made or endorsed by the registered owners.
As counsel for the Second and Third Respondents observed, to do otherwise would be to re-write the law of trusts by allowing an assertion by a person who does not have an interest in land to create an interest in land.
The Wife has had since February this year to set out the basis of her claim and has totally failed to do so.
At paragraph 68 of her affidavit the Wife sets out various improvements carried out to the property by her Husband and herself during the course of the relationship. By way of example at paragraph (s) she says she planted 160 plants at the back of the house. It cannot be the law that planting trees (no matter how many or what type) could give an occupier of land an interest in the land over and above the rights inherent in the right to occupy.
Operating a business on land does not give the occupier an interest in the land itself, absent a specific agreement with the owners or clear conduct from which it could be inferred to the contrary.
The Wife is unable to point to any specific confirmation by the owners by which a constructive trust could be implied. There is nothing to suggest that at any time the son made statements about his beliefs he was acting as an agent or in an authorised role for the owners.
The declaration the Wife seeks is in such broad terms it could never be made even if there was some basis in law for doing so. The effect of it is without any written documentation to strip the existing owners completely of their rights. By paragraph (a) she asks the Court to declare that the owners hold the subject land on trust for the Applicant and herself. In paragraph (b) she seeks a consequential order for the owners to transfer their interest in the land to the Applicant and herself.
There is not one scintilla of evidence adduced in the Wife’s case which would lead a court to strip the existing registered owners completely of their rights.
This is not a constructive trust case such as Muschinski v Dodds (1985) 160 CLR 583 where the litigants held the land jointly as tenants in common and the dispute centred on the extent to which there should be financial adjustment as between them based on the arrangements they had made.
In Giumelli v Giumelli (1999) 161 ALR 473 the issue was as to the form of equitable relief which should be ordered – compensation by way of damages or specific performance for a promised subdivision.
In the whole of the circumstances I conclude the Wife’s claim as against the Second and Third Respondents is doomed to fail.
Although the nature of the relief sought in the application in a case filed 21 October 2009 is for the Respondent’s claim to be “struck out” I accept the force of the written submissions by Counsel for the Second and Third Respondents (paragraph 6). Rule 10.12 is in the following terms:
“10.12 Application for summary orders
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction;
(b) the other party has no legal capacity to apply for the orders sought;
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
…
10.14 What the court may order under this Part
On an application under this Part, the court may:
(a) dismiss any part of the case —”
I accept that there is no longer any provision in the rules for the striking out of an application, but I propose to treat the subject application as an application for summary dismissal. Orders will issues in these terms.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.
Associate:
Date: 14 December 2009
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