PRICE v SCHULTZ - [2008] SASC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Miscellaneous Appeal)
PRICE v SCHULTZ
[2008] SASC 34
Judgment of The Honourable Justice Duggan
19 February 2008
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - JURISDICTION AND GENERALLY
Appeal against granting of interlocutory injunction restraining appellant from entering upon or residing at premises owned by him pending litigation pursuant to Domestic Partners Property Act 1996 (SA) – the appellant's former partner (the respondent) residing at premises - whether permissible to restrain harassment or intimidation designed to deter a party from pursuing a legal remedy - whether sufficient evidence to justify order - discussion as to balance of convenience.
Held: It was open to the judge to make an interlocutory order to prevent the occurrence of circumstances in which harrassment or intimidation of the respondent would deter her from pursuing remedies provided by the Domestic Partners Property Act 1996 (SA). Appeal dismissed.
Domestic Partners Property Act 1996 (SA) s 10; District Court Act 1991 (SA) s 30(1), s 30(2), s 30(4); Supreme Court Act 1935 (SA) s 29(1); Supreme Court of Judicature (Consolidation) Act 1925 UK, referred to.
Silverstone v Silverstone [1953] 1 WLR 513; Parry v Crooks (1980) 27 SASR 1, discussed.

PRICE v SCHULTZ
[2008] SASC 34
Appeal from interlocutory order made in the District Court

DUGGAN J. The appellant and the respondent lived together in a domestic relationship for a period of about 12 years. Throughout that time they resided in a house at 64 Clifford Street, Torrensville (“the Torrensville property”). The Torrensville property is owned by the appellant. The respondent is 64 years of age and the appellant is 61. There is no domestic partnership agreement between the parties.
The parties ceased living together on about 23 July 2006 when the appellant left the Torrensville property and went to live with his son at his son’s house. The respondent continues to reside at the Torrensville property.
On 19 July 2007 the respondent commenced proceedings against the appellant in the District Court seeking various orders pursuant to s 10 of the Domestic Partners Property Act 1996. Section 10 empowers the court to make orders after the end of a domestic partnership so as to divide the property of either or both partners between them in a way that is just and equitable. One of the orders sought by the respondent is the transfer to her of an unencumbered freehold interest in the Torrensville property.
The appellant filed a defence. Affidavits from both parties have been filed in the District Court.
Four days after the respondent issued these proceedings, the appellant instructed his solicitors to give the respondent seven days notice of his intention to move back into the Torrensville property.
On 24 July 2007 the respondent emailed the appellant to enquire whether he would collect his possessions from the Torrensville property. The respondent replied by email on the same date as follows:
No that will not be possible. In case you are unaware I have formally advised…

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 [2008] SASC 34
Case: [2008] SASC 34
Decision Date: 19 February 2008

CaseChat Overview and Summary

The case of Price v Schultz involves the appellant, Schultz, and the respondent, Price, who were domestic partners. Schultz had applied for an interlocutory injunction to prevent Price from entering or residing at the premises owned by Schultz, pending the resolution of a property dispute under the Domestic Partners Property Act 1996 (SA). The primary concern was whether it was permissible to restrain Schultz from entering or residing at the premises to prevent harassment or intimidation that would deter Price from pursuing a legal remedy. The court also needed to determine whether there was sufficient evidence to justify such an order and assess the balance of convenience between the parties.

The legal issues the court had to decide were the scope of equitable remedies, specifically interlocutory injunctions, and whether the court had jurisdiction to grant such an injunction under the circumstances. The court considered whether the injunction was necessary to prevent harassment or intimidation that would deter Price from pursuing a legal remedy and whether the balance of convenience favoured granting the injunction. The court also examined the evidence presented to determine if it was sufficient to justify the order.

In reaching its decision, the court considered the principles of equity and the purpose of interlocutory injunctions. It found that the injunction was permissible to prevent harassment or intimidation designed to deter a party from pursuing a legal remedy. The court concluded that the evidence provided was sufficient to justify the order, and the balance of convenience favoured granting the injunction. The court held that the injunction was appropriate in the circumstances to prevent Schultz from entering or residing at the premises and thereby deterring Price from pursuing a legal remedy.

The final orders of the court were to grant the interlocutory injunction restraining Schultz from entering or residing at the premises owned by him pending the resolution of the property dispute. The court's decision underscores the importance of protecting parties from harassment or intimidation that could prevent them from pursuing a legal remedy, and the need to balance the interests of both parties in granting such an injunction.

Orders