Price v Schultz - [2009] SASC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PRICE v SCHULTZ
[2009] SASC 76
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)
24 March 2009
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - JURISDICTION AND AVAILABILITY OF REMEDY GENERALLY - IN GENERAL
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT COURT
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - OTHER MATTERS
Appeal from decision of Judge dismissing appeal from interlocutory ruling by District Court Judge - defendant and appellant purchased property in 1983 - plaintiff and respondent commenced cohabiting with defendant in 1994 - lived as de facto couple until deterioration of relationship in 2006 - defendant left property - following breakdown of settlement negotiations defendant gave notice of intention to return to property - plaintiff sought urgent interlocutory relief for grant of injunction restraining defendant from residing at property - injunction granted and appeal from ruling dismissed by Judge - whether jurisdiction of District Court to grant injunction enlivened - whether if enlivened, prima facie case made out - whether balance of convenience against grant of injunction.
Held: injunction granted by District Court Judge should be set aside - undertaking of defendant not to move back to property until a month after conclusion of taking of evidence in District Court trial should be accepted - cross undertaking by plaintiff as to damages should be given.
District Court Act 1991 (SA) s 5, s 8, s 30 and s 31; Domestic Partners Property Act 1996 (SA) s 9; Family Law Act 1975 (Cth) s 114, referred to.
Parry v Crooks (1981) 27 SASR 1; Silverstone v Silverstone [1953] P 174; Davis v Johnson [1979] AC 264; Broadmoor Special Hospital Authority v Robinson [1999] EWCA 3606; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Page v Central Queensland University [2006] QCA 478, considered.

PRICE v SCHULTZ
[2009] SASC 76
GRAY and SULAN JJ.

This is an appeal from a decision of a Judge of this Court dismissing an appeal from an interlocutory ruling by a District Court Judge.
This appeal calls for the consideration of questions arising out of a de facto relationship. The appeal also raises an issue as to the extent of jurisdiction of the District Court to grant injunctions. Permission to appeal has been granted.
Background
The defendant and appellant, Robert Gareth Price, is now aged 61 years. In 1983 he purchased a property at Torrensville. He has remained the sole registered proprietor since that date. The property is mortgaged. Following the purchase of the Torrensville property it became his home.
In or about 1994 the defendant commenced cohabiting with the plaintiff and respondent, Yvonne Margaret Schultz. They lived at the Torrensville property in a de facto relationship for more than 10 years until July 2006. The relationship between the parties deteriorated sometime prior to July 2006.
Prior to July 2006 the parties entered into discussions about…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Price v Schultz

Details

AGLC: Price v Schultz [2009] SASC 76
Case: [2009] SASC 76
Decision Date: 24 March 2009

CaseChat Overview and Summary

The appeal in Price v Schultz involved a dispute between former de facto partners, Robert Price and Yvonne Schultz, concerning the ownership of a property located at Torrensville. The dispute arose after the breakdown of their relationship in 2006. Schultz sought urgent interlocutory relief in the form of an injunction to restrain Price from residing at the property, which was granted by the District Court Judge. Price appealed against the decision of the Judge who dismissed his appeal from the interlocutory ruling. The central legal issues in this case were whether the District Court had the jurisdiction to grant the injunction and whether Schultz had made out a prima facie case for the injunction, as well as whether the balance of convenience favoured the grant of the injunction.

The District Court Judge found that the Court had jurisdiction to grant the injunction under section 30 of the District Court Act 1991 (SA). The Judge further considered the requirements for granting an injunction and found that Schultz had a legal or equitable right to protect, namely her use and occupation of the Torrensville property. The Judge also considered the possibility that Price’s return to the property was intended to intimidate Schultz and deter her from continuing with the proceedings, which would amount to harassment. The balance of convenience was found to be in favour of Schultz, given the potential negative impact on her health and well-being if Price were to return to the property.

The appeal was ultimately dismissed by the court. The injunction granted by the District Court Judge was set aside, and an alternative arrangement was proposed. Price was to provide an undertaking not to move back to the property until a month after the conclusion of taking evidence in the District Court trial. In turn, Schultz was to provide a cross undertaking as to damages. This decision highlights the importance of considering the balance of convenience and the potential impact on the parties when deciding whether to grant an interlocutory injunction in cases involving de facto relationships and property disputes.

Orders

Orders of the court

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Background

Background to the litigation

This appeal calls for the consideration of questions arising out of a de facto relationship. The appeal also raises an issue as to the extent of jurisdiction of the District Court to grant injunctions. Permission to appeal has been granted.Background The defendant and appellant, Robert Gareth Price, is now aged 61 years. In 1983 he purchased a property at Torrensville. He has remained the sole registered proprietor since that date. The property is mortgaged. Following the purchase of the Torrensville property it became his home. In or about 1994 the defendant commenced cohabiting with the plaintiff and respondent, Yvonne Margaret Schultz. They lived at the Torrensville property in a de facto relationship for more than 10 years until July 2006. The relationship between the parties deteriorated sometime prior to July 2006. Prior to July 2006 the parties entered into discussions about their separation and a division of property. In July 2006 the defendant left the Torrensville property. In an affidavit filed by the defendant he explained the circumstances of his leaving:In or about late June 2006 I travelled to Europe for four weeks. Whilst I was overseas the Plaintiff attended at Relationships Australia for counselling. Upon my return from Europe we attended Relationships Australia together on 21 July 2007. It was at these counselling sessions that discussions began to take place about the division of assets and occupation of the Torrensville Property.The plaintiff asserted that she wished to mediate a speedy settlement. I was in agreement with this approach. The plaintiff and I both agreed that it would be difficult to negotiate a settlement when we were both residing in the same premises. The plaintiff indicated that she would only leave the Torrensville Property “in a body bag” and so I made the decision to move out of the property on a temporary basis to allow negotiations to take place. I did this in good faith.I moved in with my son on 23 July 2006. My son resides in what can best be described as a housing trust ‘duplex’ at 10 Bathurst Street Athol Park (“the Athol Park Property”). The Athol Park Property is a small two-bedroom house and when I left the Torrensville Property I left with only my personal belongings and some clothing, indicating the temporary nature of my move. All of my furniture and other belongings remain at the Torrensville property to this date. [Emphasis added] The negotiations between the parties broke down. The plaintiff then issued the within proceedings on 19 July 2007. This was shortly before the expiration of a relevant time limit. By her Statement of Claim the plaintiff sought orders that the defendant discharge the mortgage over the Torrensville property and transfer that property to her absolutely. She also claimed one half of the defendant’s superannuation entitlements and a quarter interest in a family trust that the defendant had created many years earlier for the benefit of his children from an earlier marriage.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As earlier noted the defendant had, by July 2007, resided for a year in the second bedroom at his son’s premises. The defendant’s son lived with his partner at those premises. The decision of the District Court Judge It is against the above background that the District Court Judge made the following orders:The defendant be restrained and an injunction be granted restraining the defendant from residing at or continuing to reside a premises known as 64 Clifford Street Torrensville (“the premises”) being the whole of the land comprised and described in Certificate of Title Register Book Volume 5836 Folio 152, or attending at the premises without the written consent of the plaintiff until the substantive issue the subject of these proceedings in is finalised or until further order That the defendant continue to pay the loan with respect to the premises secured by mortgage registered against the title.The defendant be restrained and an injunction granted restraining the defendant from further encumbering the property in anyway including but not limited to extending the current loan, by a mortgage lien charge or in any manner whatsoever until further order.The defendant continue to pay all such rates and charges attached to the property by virtue of the fact that he remains the registered proprietor thereof until further order.The defendant pay the costs of this application.The parties may apply for further orders or directions. The District Court Judge considered that she had power to grant an injunction pending the final determination of the action pursuant to section 30 of the District Court Act 1991 (SA). That section provides:The Court may, on such terms as appear just, grant an injunction or make any other order that may be necessary to preserve the subject-matter of an action intact until the questions arising in the action have been finally determined. The District Court Judge then discussed that power in the following terms:[1][1] Schultz v Price (2007) 251 LSJS 82; [2007] SADC 98 at [21].The District Court has the power to grant an injunction pending the final determination of proceedings. That power is not unlimited. There must be a proper basis for a court to grant equitable relief in the nature of an injunction. It is said that an applicant must identify the legal or equitable right which it is sought to protect (or the wrong which it is sought to prevent), pending the final determination of the action between the parties: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199. The injunction sought must arise out of and be incidental to the action, and the applicant should be able to demonstrate that there are sufficiently plausible grounds for the granting of the final relief sought, such that the applicant’s interests might be jeopardised if the interlocutory relief is not granted: Meagher, Gummow & Lehane’s Equity Doctrines and Remedies 4th Edition, Meagher Haydon and Leeming. In addition, the Court may have to consider whether on balance, it is in the interests of justice having regard to the circumstances of both parties, to grant the injunction sought.The District Court Judge then considered the power of the Court to grant an injunction in the circumstances that she described as being “of the kind described in Parry v Crooks”. Earlier in her reasons she had identified the relevant observations from the judgment of King CJ as follows:[2][2] Parry v Crooks (1981) 27 SASR 1 as cited in Schultz v Price (2007) 251 LSJS 82; [2007] SADC 98 at [25].…in an appropriate case, the power to grant an injunction would be used by a court in order to restrain molestation, harassment, abuse or intimidation designed to deter a party from pursuing a legal remedy.The District Court Judge proceeded to determine the application in accordance with this principle and concluded:[3][3] Schultz v Price (2007) 251 LSJS 82; [2007] SADC 98 at [41].I have also considered the plan and the nature of the layout of the premises, the fact that there is only one toilet and one bathroom, in the context of the state of affairs between the parties. I note that the plaintiff would be required by the defendant to move out of the main bedroom which the defendant seeks to occupy, and into the second bedroom. I find that it would be awkward and perhaps impossible for the parties to live separately and apart in the premises, with a real possibility of verbal clashes, frustrations and consequent stress on both parties. Having regard to the fragile state of the plaintiff’s health, I find that it is probable that there would be negative health consequences for the plaintiff, should the defendant return to the premises and endeavour to live there together with but separately from the plaintiff. I have reached this conclusion notwithstanding the defendant’s evidence that he works long hours and spends time interstate as part of his job, by which evidence it seems that the defendant sought to infer that his presence in the premises would not impact hugely on the plaintiff’s daily living.The plaintiff says that in consequence of the defendant’s return, she would be forced to move out of the premises.On what is before me, the defendant is in a better financial position than the plaintiff and therefore financially well able to find alternative accommodation pending the resolution of the proceedings should he no longer be able to reside with his son, as he has been doing since late July 2006. There was no evidence that the defendant has any physical or health issues that would handicap him in moving to new accommodation.On the present evidence, I find that it would be difficult for the plaintiff to move out of the Torrensville premises to other accommodation pending resolution of the proceedings, given the state of her health and her physical disabilities.I note that the defendant’s notice of intention to return to live in the Torrensville premises was given approximately 5 days after the plaintiff commenced proceedings under the Domestic Partners Property Act. The conclusion that this move by the plaintiff was designed to intimidate the plaintiff, force her into a settlement that suited the defendant or deter her from continuing with the proceedings in this Court, is open.The District Court Judge then added:[4]Here, there is evidence that the plaintiff’s health is likely to be affected should the defendant return to live in the house together with, but separately and apart from her. The plaintiff would be disturbed in her use and occupation of the house, both initially, and on an ongoing basis. There would be a real risk of ongoing awkwardness and unpleasantness between the parties if they were to both live at the premises. I consider that this would amount to persistent disturbance and thus harassment of the plaintiff, particularly given that she has been living alone at the premises, unhindered by and with the agreement of the defendant, for more than one year. Such harassment would, in the circumstances, amount to a pressure upon the plaintiff, which could deter her from the proceedings that she has commenced in this Court under the Domestic Partners Property Act and may well be designed to do so. The likely harassment and pressure would be sufficient to form the basis for the grant of an injunction against the defendant consistent with the approach of the courts in other matters such as Silverstone, Nguyen v Scheiff and Parry v Crooks.The ultimate conclusion of the District Court Judge, expressed under the heading “Balance of Convenience”, was as follows:[5]I find that, should the defendant return, the plaintiff’s life would be disrupted, and she would be harassed. The defendant’s occupancy would have a very negative impact on the plaintiff. She might be deterred from continuing the proceedings in this Court. I have considered all the matters that were put to me and now conclude that the balance of convenience is in favour of the plaintiff’s application.[4] Schultz v Price (2007) 251 LSJS 82; [2007] SADC 98 at [48].[5] Schultz v Price (2007) 251 LSJS 82; [2007] SADC 98 at [54].The Initial Appeal

Ratio Decidendi

Legal Principle Established

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