Rylatt, Lindsey Marie v Fearnley, Debra (Ruling)
[2009] VCC 1204
•5 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
APPLICATIONS
Case No. CI-09-02835
| LINDSEY MARIE RYLATT | Plaintiff |
| v | |
| DEBRA FEARNLEY | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 September 2009 |
| DATE OF RULING: | 5 October 2009 |
| CASE MAY BE CITED AS: | Rylatt, Lindsey Marie v Fearnley, Debra (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1204 |
RULING
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Catchwords: DOMESTIC PARTNERSHIP – Relationships Act 2008 – application pursuant to section 282(2) for leave to apply for an order for adjustment of interests in property – considerations relevant to the grant of leave – application granted: Property Law Act 2008, section 282(2).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N James | Belleli King & Associates |
| For the Defendant | Mr C Nehmy | Einsiedels |
| HIS HONOUR: |
Background
1 The plaintiff filed a Summons on 23 June 2009 seeking the Court’s leave to have time extended to bring a proceeding under Part IX of the Property Law Act 1958.[1]
[1] Part IX of the Property Law Act 1958 was repealed by the Relationships Act 2008. The former Act was repealed on 1 December 2008 and the latter Act came into operation on that day
2 The plaintiff filed an Originating Motion on the same day seeking principal relief under Part IX of the Property Law Act 1958.
3 Mr James submitted that the application was to be made under section 43 of the Relationships Act 2008.
4 Section 74(3) of the Property Law Act 1958 provides that if an application for an order has been made under Division 2 of Part IX before 1 December 2008 when the Relationships Act 2008 commenced, an application is to continue to be dealt with in accordance with Part IX as if Part IX had not been repealed.
5 Therefore, the application made by the plaintiff falls to be determined under section 282(2) of the Property Law Act 1958. I should add that the equivalent provision in the Relationships Act 2008 is in identical terms to section 282(2).[2]
[2] Section 43(2)
6 Mr N James of Counsel appeared for the plaintiff and Mr C Nehmy of Counsel appeared for the defendant.
The Material before the Court
7 In support of her Summons, the plaintiff swore an affidavit on 8 July 2009. The defendant swore an affidavit in reply on 22 July 2009. The plaintiff swore a further affidavit on 29 July 2009.
8 Mr James and Mr Nehmy informed me that neither the plaintiff nor the defendant were to be cross-examined, and that I was to determine the factual issues based upon the affidavits.
The Plaintiff’s Case
9 The plaintiff was born on 18 October 1964. She is now forty-four years of age. She is in receipt of a disability pension.
10 The plaintiff said that she met the defendant in about May 2002. Subsequently, they commenced a relationship, leading to a domestic relationship in October 2002. They separated in July 2003.
11 At the commencement of their relationship, the defendant owned a property at 2 Silas Ave, Frankston. The plaintiff moved into that property and shared it with the defendant as their home.
12 The plaintiff said that in November 2002, she received the sum of $76,000 from two superannuation funds based upon being declared totally and permanently disabled. She said she applied those funds for the benefit of the domestic relationship she had with the defendant. In summary, she said she applied those moneys as follows:
•
Carrying out substantial renovations and improvements which included renovating the bathroom at the property.[3]
• Renovating the kitchen.[4] • Purchasing French doors for the lounge room.[5] • Painting.[6] • Purchasing sundry items for the joint benefit of the domestic partnership.7 •
Paying $14,000 for a holiday, and lending the defendant $5,000 as her spending money on the holiday.8
• Paying mortgage instalments amounting to a total of $21,200.9 [3] Paragraph 8
[4] Paragraph 9
[5] Paragraph 10
[6] Paragraph 11
13 The plaintiff said she lodged a caveat on the title of the property. She said she did not believe she had a strong case against the defendant and for some reason believed that the caveat would expire one month after its lodgement.
14 The plaintiff then described the grave misfortune she has encountered with the untimely demise of her sister; the necessity for her to care for her sister’s children; the onset of a cancerous condition contracted by another sister; and a heart attack and stroke suffered by her mother. All of these events occurred between October 2003 and October 2006. The plaintiff said that she suffered stress as a result of these events which made it difficult for her to focus on the breakdown of the domestic partnership.10
15 The plaintiff said that she is in a parlous financial state. She has no savings. She lives on a disability pension.11
16 In her second affidavit, the plaintiff said that in about September 2003 she engaged a solicitor to whom she gave instructions to take steps to recover the contributions she made to the domestic relationship. The negotiations which she says followed came to nothing.12
17 The plaintiff amplified upon the great misfortunes which she encountered with her family and referred to others which included problems with her nephew;13 the death of her mother, and the impact of her mother’s ill-health upon her own capacity to conduct a business;14 the care she provided for the son of her
Paragraph 12 and exhibit “LMR-1”
Paragraph 13
Paragraph 13
Paragraphs 17-21
Paragraphs 3 and 23
Paragraphs 3-4
Paragraph 7
Paragraphs 11-13
niece;[15] the birth of the daughter of her nephew born with Down’s syndrome;[16]
and her own treatment for hepatitis C.[17][15] Paragraph 14
[16] Paragraphs 16
[17] Paragraph 17
18 The defendant, in reply, said that as a result of an argument the plaintiff had with people with whom she was living, she invited the plaintiff to come and stay with her in about May 2003. At that stage the plaintiff and the defendant were in a relationship, seeing each other once or twice a week
19 The defendant said that the plaintiff lived at the property for a total of eight weeks only, and that their relationship lasted for fifteen months all up.
20 The defendant then made a reply to all of the allegations made by the plaintiff, essentially denying that there was a domestic relationship of any substance, and saying that after an argument in July 2003 the plaintiff moved out of the property, and otherwise the only financial contribution made by the plaintiff for the benefit of the defendant was payment of an unspecified sum towards the holiday which the plaintiff says that she paid for, and toward mortgage payments, again not specifying the amount which she admits the plaintiff paid in that respect.[18]
[18] Paragraphs 3-12
21 The defendant said that the plaintiff did lodge a caveat over the title of the property. She admitted that there were some negotiations which came to nothing, and that both were represented at the time when the defendant sought an intervention order against the plaintiff.[19]
[19] Paragraph 14-15
22 The defendant said that essentially the plaintiff frittered away her money by buying gifts for the defendant and otherwise wasting it.[20]
[20] Paragraph 17
Findings of Fact
23 It is clear from the foregoing that the plaintiff and the defendant are at odds on most factual issues.
24 Both admit that they developed a relationship. The plaintiff submits that it was a domestic relationship of some thirteen months between May 2002 and July 2003, whereas the defendant submits that there was no domestic relationship, and what relationship they had lasted fifteen months, during which period there was an eight-week period when the defendant says she invited the plaintiff to stay at her home because the plaintiff had nowhere else to stay.
25 The only other areas where the plaintiff and the defendant are otherwise in some measure of agreement is that the plaintiff did contribute sums of money toward a holiday and toward the payment of the mortgage over the property.
26 The plaintiff has been very specific in defining the work she undertook in renovating the property and the financial contributions she made to the conservation of the property and the purchase of various items for the joint benefit of the domestic partnership.
27 The defendant admits that she and the plaintiff were in a relationship for some fifteen months, but a relationship which she says did not have the characteristics of a domestic relationship. Her estimate of the period of their relationship is almost consistent with what the plaintiff says, that they were in a domestic relationship of some thirteen months.
The Relevant Considerations for Leave
28 What constitutes “hardship” referred to in section 43(2) is not defined in the Act. In Harris v Harris,[21] Gillard J rejected a submission that hardship means “substantial detriment”, saying that it was a word which was well understood and that there was nothing to be gained by substituting other words for it. He added that the relevant subsection required the Court to consider the relative hardships of the parties.[22]
[21] (1997) 22 Fam LR 263
[22] at 267
29 He added some flesh to its meaning when he considered what was said in In the Marriage of Neocleous,[23] in which Fogarty and Nygh JJ said:
[23] (1993) 16 Fam LR 557
“Hardship is caused by the inability of a person to pursue a claim which in the circumstances of the case appears on the prima facie evidence to be substantive and not merely trifling.”[24]
[24] at 561
30 Gillard J considered that what Fogarty and Nygh JJ said, in the context of section 44(4) of the Family Law Act 1975, was apposite to the matter before him, and added:
“I have no hesitation in saying that if leave is not granted the plaintiff will
suffer hardship and the hardship can be described as substantial.”[25]
[25] at 267
31 In Joyce v Delany,[26] Williams J referred to Harris v Harris (supra) and The Marriage of Neocleous (supra) with approval.
[26] [2004] VSC 338
32 There are two other considerations relevant to the exercise of the discretion whether to grant leave or not. Some assessment of the likely outcome of the proceeding is necessary when considering the respective hardships to the plaintiff and the defendant, and some explanation for the delay between the end of the domestic relationship and the commencement of the proceeding must be provided.
33 In Lockett v Duckett,[27] Cummins J considered that the plaintiff had to establish a prima facie case that was by no means untenable, as the standard of satisfaction. In McGibbon v Marriott,[28] Warren J (as she then was) considered that the plaintiff had to establish at least an arguable case.
[27] (2004) 32 Fam LR 346, at paragraph 23
[28] [1999] VSC 381, at paragraph 18
34 In order to make some assessment of the likely outcome of the proceeding, it is necessary to consider section 282(2), which requires me to consider the contributions made by the plaintiff and the defendant to the acquisition, conservation or improvement of any property, or to the financial resources of one or both of the plaintiff and the defendant, and contributions made in the capacity of homemaker or parent.
35 There are a number of authorities which essentially stand for the proposition that the plaintiff must provide at least a reasonable explanation as to why there has been a delay in instituting the proceeding.[29]
[29] McGibbon v Marriott (supra) per Warren J, at paragraph 7; Lockett v Duckett (supra), per Cummins J, at paragraph 20; and Stott v Murphy [2004] VSC 373, per Cummins J, at paragraph 14. In both cases, Cummins J disagreed with Gillard J in Harris v Harris (supra) applying.
36 In Lockett v Duckett (supra), Cummins J, in applying McGibbon v Marriott (supra), added, when discussing what the plaintiff needed to prove to establish a reasonable explanation for such delay:
“However I consider that the standard is not a rigorous or high standard of satisfaction, but rather a standard of reasonableness; that is, a reasonable explanation, allowing, in particular, for the emotional and human factors involved in domestic arrangements and the complex of factors involved in such arrangements.”[30]
[30] At paragraph 21
37 He repeated that observation in Stott v Murphy.[31]
[31] [2004] VSC 373, at paragraph 14
38 In Giller v Procopets,[32] Ashley JA considered whether it was necessary for an applicant in the position of this plaintiff to adequately explain delay in bringing a proceeding. He concluded that in the exercise of the Court’s discretion whether to grant leave, the Court is entitled to take into account the presence or absence of an explanation for delay, but the failure to adequately explain the delay does not preclude a favourable exercise of discretion.[33]
[32] [2008] VSCA 236
[33] Paragraph 58
39 Neave JA reviewed what was said in Lockett v Duckett (supra), Harris v Harris (supra) and McGibbon v Marriott (supra) relevant to delay. Neave JA referred to the passage in McGibbon v Marriott which I have referred to in paragraph 22 above, with approval.[34]
[34] Paragraph 309
40 Therefore, it is for the plaintiff to establish that the hardship caused to her is greater than the hardship to the defendant if leave were granted; that she has a prima facie or an arguable case; and that she is able to adequately explain the delay in bringing the proceeding.[35]
[35] In the Family Court there are three principal matters which guide the Family Court in dealing with similar applications: firstly, reasonable prima facie case for relief had the applicant instituted the proceeding in time; secondly, that a denial of leave would cause hardship; and thirdly, that there is an adequate explanation for the delay: see In the Marriage of Jacenko (1986) FLC 91-776 at paragraph 17
The Case for Leave
41 In the absence of the testing of the evidence of the plaintiff and the defendant, I am left to determine this application on what I can make of the competing facts as deposed to by the plaintiff and the defendant.
42 It occurs to me that unless the account given by the plaintiff is inherently contradictory or unbelievable, then I should accept her account for the purpose of this application.
43 Whilst the defendant has denied the substantial allegations made by the plaintiff going to the financial contributions made directly by the plaintiff to the conservation or improvement of property, there is nothing in those denials which could possibly lead me to the conclusion that the plaintiff’s evidence is inherently contradictory or unbelievable.
44 However, the fact that the defendant admits that the plaintiff contributed sums of money to a holiday and to payment of the mortgage confirms some of what the plaintiff says, and goes some of the way to establishing that there was a domestic relationship in existence between the plaintiff and the defendant characterised by the plaintiff and the defendant using the plaintiff’s money for the benefit of both of them.
45 Furthermore, the defendant admits that the plaintiff bought her gifts. The use to which the plaintiff put her money, to the extent admitted to by the defendant, does confirm some of the allegations made by the plaintiff.
46 The financial contributions allegedly made by the plaintiff approximating $76,000 are substantial on any view. It will inevitably cause hardship to the plaintiff if she were shut out from making a claim for an adjustment of interests in the property, and I consider that the hardship caused to the plaintiff would be significantly greater than would be caused to the defendant if leave were granted.
47 The plaintiff is in her mid-40s. She is on a disability pension. She is in a parlous financial state which is unlikely to improve. Inherent in what she has said in both of her affidavits is that the moneys she allegedly invested in the domestic partnership are the entirety of her capital resources.
48 On the other side of the ledger, the defendant owns the property. She has not chosen to provide any evidence of her financial wherewithal, leaving me to infer that she is in a sound financial position.
49 A comparison of the hardship must, in my considered opinion, favour the conclusion that there will inevitably be greater hardship caused to the plaintiff if the leave sought is not granted.
50 Inherent in the foregoing analysis is also an analysis of the plaintiff’s prospects of success. If the plaintiff is able to prove a significant proportion of the allegations she makes in her affidavits, then it will be likely that there will be an adjustment of interests in property in her favour. Therefore, I consider that she can establish a prima facie or arguable case.
51 I am not persuaded that the plaintiff’s explanation for the delay is an altogether satisfactory one. Mr Nehmy was at pains to point out that the plaintiff and the defendant engaged in some negotiations which came to nothing, following which the plaintiff apparently abandoned any pursuit of a claim against the defendant.[36]
[36] Paragraph 11 and 14-15 of the defendant’s affidavit
52 It strikes me that the plaintiff’s statement in her first affidavit that she mistakenly understood that she did not have a strong case does not stand up well against the evidence which she now says supports a very different and opposite conclusion.[37]
[37] Paragraph 15
53 The cause of action under Part IX accrued in favour of the plaintiff in July 2003 when she says the separation occurred. The limitation period expired in July 2005. It is now six years and nearly three months since the cause of action accrued and four years and nearly three months since the limitation period expired.
54 Mr Nehmy submitted that the period of time which has expired is so great that on that basis alone the application for leave should be refused. He referred me to Stott v Murphy (supra), relying on the conclusion reached by Cummins J that the period of delay of seven years was very substantial and remained unexplained.
55 However, I am not satisfied that the conclusion reached by Cummins J on the facts before him is of any assistance to me. The plaintiff in that proceeding had commenced a partition application. The defendant applied out of time to bring a proceeding under Part IX. Cummins J referred to section 282(2)(b)(i) which provided a basis for a court making an order where otherwise there would not be adequate compensation for a domestic partner making an application for adjustment of interests in property.
56 What distinguishes Stott v Murphy (supra) is that the plaintiff does not have another cause of action on foot and probably no other cause of action available to her.
57 The plaintiff may have been distracted by the most unfortunate events which plagued her family; however, I am not persuaded that those events were such a distraction to have seen her lose her focus on the domestic relationship she had with the defendant and her entitlement to an adjustment of interests in the property.
58 The considerations referred to in the authorities I have reviewed are relevant to the exercise of the discretion I am to exercise in determining whether to grant the plaintiff leave or not. I have little doubt that establishing that there was a domestic relationship and that she has a prima facie or arguable case for an adjustment of interests in property are primary, and that some reason for the delay is necessary to avoid what Cummins J considered underlined the need for an explanation for delay, and that is, the policy consideration that there be some certainty in people’s lives so far as it can be properly achieved by not being burdened by litigation many years after it should have been commenced.[38]
[38] Paragraph 13
59 The defendant has not deposed to any material which suggests what the hardship to her will be if leave is granted, and on the contrary her affidavit is silent on that issue.
60 I am fortified in giving the plaintiff’s inadequate reason for the delay less weight by what was said by Ashley JA in Giller v Procopets (supra). To give it more significant weight than the primary considerations may lead to an unfortunate situation where there is hardship to an applicant who has a prima facie or arguable case but has sat on his/her hands.
61 As in all cases calling for an exercise of discretion, it is a matter of weighing up all of the relevant considerations in determining what weight each ought to be given. In this case I am satisfied that because the plaintiff’s evidence is not inherently contradictory or unbelievable I should rely on it in determining this application. I am satisfied that she will suffer hardship greater than that of the defendant, and that she does have a prima facie or arguable case. Whilst there is some explanation for delay, as I have already observed I am not satisfied that it is an altogether satisfactory explanation.
Conclusion
62 For the reasons set out above, I will grant the plaintiff leave to commence a proceeding under Part IX by Originating Motion nunc pro tunc.
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