SCHULTZ v PRICE
[2007] SADC 98
•24 September 2007
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SCHULTZ v PRICE
[2007] SADC 98
Judgment of Her Honour Judge Trenorden
24 September 2007
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS
Application by plaintiff for interlocutory injunction under Domestic Partners Property Act 1996 - whether a proper basis exists for a court to grant equitable relief considered - balance of convenience of parties considered - application granted.
Domestic Partners Property Act 1996; Family Law Act 1975; Property (Relationships) Act 1984 (NSW); District Court Act 1991, referred to.
Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199; Parry v Crooks (1980) 27 SASR 1; Silverstone v Silverstone [1953] 2WLR 513; Bendall v McWhirter (1952) 2 QB 466; Davis v Johnson [1979] AC 264; O'Kane v Fogarty (1985) 2 NSWLR 649; Cardile & Ors v LED Builders Pty Ltd (1999) 198 CLR 380; Nguyen v Scheiff [2002] NSWSC 151; Davis v Davis (1983) FLC 91-319, considered.
SCHULTZ v PRICE
[2007] SADC 98THE COURT DELIVERED THE FOLLOWING JUDGMENT:
Introduction
The plaintiff commenced proceedings under the Domestic Partners Property Act1996 on 19 July 2007. The defendant has given notice that he intends to return to reside in the premises where the plaintiff is presently residing alone. The plaintiff seeks an interlocutory injunction; specifically in the form of the following orders:
1 That the defendant be restrained and an injunction be granted restraining the defendant from residing at premises known as 64 Clifford Street, Torrensville (“the premises”) being the whole of the land compromised 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 is finalised or until further order.
2 That the defendant continue to pay the loan with respect to the premises secured by mortgage registered against the title.
3 That 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.
4 That 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.
5 That the defendant pay the costs of this application.
6 Such further or other orders as this Honourable Court deems fit.
The defendant opposes the orders sought in the paragraphs numbered 1, 5 and 6. He gave an undertaking to the Court not to return to the premises, pending this decision of the Court on the plaintiff’s application.
For the interlocutory application, certain affidavit material was put before the court. For the purpose of determining the interlocutory application I note the following, which appeared to be agreed facts, according to the affidavit evidence of the parties:
·The parties lived together in a domestic partnership for approximately 12 years.
·The parties lived together at the premises known as 64 Clifford Street, Torrensville (the Torrensville premises).
·The defendant is the sole registered proprietor of the Torrensville premises, and has and continues, to pay all outgoings on the premises.
·On about 23 July, 2006, the defendant voluntarily vacated the Torrensville premises, enabling the plaintiff to reside there alone.
·In or about July 2006, the plaintiff and defendant began discussions with a view to agreeing the division of partnership property between them, including the Torrensville premises.
·The plaintiff has resided and continues to reside at the Torrensville premises.
·Since 23 July 2006 the defendant has resided with his son at his son’s premises.
·On or about 24 July 2007, the defendant gave notice to the plaintiff that he intended to move back into the Torrensville premises within 7 days.
Source of Court’s Power
Following the end of the domestic partnership, both (former) partners have a right to apply to the Court for the division of property: s 9 Domestic Partners Property Act. Upon such an application, the court is empowered to make “such orders as it considers necessary between the domestic partners, the property of either or both partners, in a way that is just and equitable.”: s 10 (1) Domestic Partners Property Act.
The court is not specifically empowered under the Domestic Partners Property Act, to grant an injunction to restrain one of the parties from residing at the partnership premises, but it does have power to grant an injunction to restrain “a person from entering into a transaction that might defeat an order, or an anticipated order, for the division of property”: s 14 (2). That is of no help in this application. Although a court is empowered to grant specific remedies and relief under the Domestic Partners Property Act, those powers are not exclusive of other forms of remedy or relief: s 16.
The situation is different under the Family Law Act 1975. In the analogous situation where a marriage has broken down, the Family Court may grant an injunction to restrain one of the former partners in a domestic partnership from residing at the partnership premises: see s 114 (1)(b). The Property (Relationships) Act 1984 (NSW), in s 53 gives a similar power to a court with jurisdiction under that Act, with respect to a former domestic relationship.
However, in this State the District Court has a general power to grant an injunction pending the final determination of an action: s 30 District CourtAct 1991.
The Plaintiff’s Evidence
The plaintiff has lived in the Torrensville premises since about August 1994 with the defendant, and since July 2006 on her own, by agreement with the defendant.
The plaintiff submits that she is in poor health with a number of identified health issues and is under the care of, among other professionals, a consulting psychologist who is treating her for a depressive disorder. It is her contention and belief that her health would deteriorate should the defendant return to live in the premises. In July 2006 the plaintiff received medical advice that it would be detrimental to her health and wellbeing for both her and the defendant to reside under the same roof. The likely stress resulting would worsen her medical problems, so she was informed.
The plaintiff receives a Government benefit and claims not to have the financial means to either buy or rent alternative premises.
The plaintiff also says that the premises are not suitable for both her and the defendant to live in, at the same time, while maintaining either no or minimal contact. The premises have only one bathroom, one toilet and one kitchen. The living areas are “open plan” with the sitting room, family room and kitchen unable to be closed off and used as separate rooms. In addition, the plaintiff presently occupies bedroom one, being the larger of the two bedrooms and at night when she is unable to sleep, uses the computer room at the front of the premises. That room adjoins the second, smaller bedroom, from which it is separated by a wall in which there is a window.
The plaintiff claims that the defendant is well able to find alterative accommodation, given his present financial means, even if he is unable to continue to reside with his son at his son’s premises.
The Defendant’s Evidence
The defendant claims that he has good reason for wanting to leave his son’s premises.
The Torrensville premises were purchased by the defendant in about 1983. Since his departure from the premises in July 2006, the defendant has continued to pay all costs associated with the Torrensville premises.
The defendant maintains that as the sole registered proprietor of the Torrensville premises, he has “the right to the free enjoyment of that property to the exclusion of all others, including the plaintiff”. He does not expect the plaintiff to vacate the premises upon his return and asserts that he and the plaintiff could both live at the Torrensville premises pending the determination of the plaintiff’s action.
Should the defendant return to the premises, he proposes to occupy bedroom one. In this event, should the plaintiff use the computer room at night, she would provide no disturbance to the defendant, as the computer room adjoins the bedroom that the plaintiff would occupy.
The defendant does not envisage any difficulty with both parties sharing the one bathroom and one toilet facility as he asserts he has always and would continue to be understanding and reasonable about the shared use of these facilities.
While noting that the family and sitting rooms are open plan, the defendant does not see this as creating a difficulty in the event of both parties living at the premises, but asserts that if necessary, he would re-erect the dividing wall between the two rooms which he alleges was removed by the plaintiff some three years ago.
In addition, the defendant says that as a consequence of his full time work commitments that include long hours and extensive travel interstate, his presence in the Torrensville premises would not have a huge impact on the plaintiff’s daily living.
The Law
The Domestic Partners Property Act, by its long title, is an Act to facilitate the resolution of property disputes arising on the termination of domestic partnerships; and for other purposes. Parliament has not specifically empowered a Court acting under this Act to grant an injunction to prevent one of the former partners from residing at the premises of which he is the sole registered proprietor, and which were formerly the partnership premises. However, as I have already noted, the specific remedies and relief that a court is empowered to grant under the Act are not exclusive of other forms of remedy and relief: see s 16.
The General Threshold for Injunctive Relief
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 Corporationv 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.
In Domestic Relationship Matters
Counsel for the plaintiff referred the court to the Supreme Court reasoning in Parry v Crooks (1980) 27 SASR 1 in support of the Court’s power to grant an injunction in favour of a party against a former domestic partner. In that matter, the plaintiff held in her own name, the lease of certain residential premises and sought an injunction to restrain the defendant, who had briefly lived at the premises with the plaintiff, from trespassing on the premises and from assaulting and molesting her. In his reasons, King CJ cautioned that the jurisdiction of the courts to grant injunctions is not unlimited. King CJ, with whose reasons Mohr J agreed, considered the prospect of an injunction being granted in relation to conduct which would not infringe a legal right. An injunction could only be granted where conduct does not amount to an infringement upon a legal right, according to His Honour, “if some specific statutory power can be invoked or some accepted basis of legal principle can be found to justify it” (page 9). His Honour referred to Silverstone v Silverstone [1953] 2WLR 513, in support of the proposition, and expressed the view that he saw no reason why the principle upon which the Court acted in Silverstone (above) should be confined to matrimonial causes (as opposed to de facto relationship matters). His Honour Justice Zelling expressed a similar opinion, specifically identifying four bases of jurisdiction in domestic cases, applicable whether the parties be married or in a de facto relationship (to use the terminology then current).
In Silverstone the wife had applied to continue an injunction to prevent the husband from using the flat which had been the matrimonial home for the previous 12 years, pending the hearing of a divorce petition. The flat belonged solely to the husband; the wife had no proprietary interest in the premises. The husband was prepared to share the flat with his estranged wife, but she did not want him to live in the premises with her. The husband’s argument was that the court was entitled to leave the wife in the flat but that as the husband was prepared to share it with her the court could not prevent him living there. Except that the parties were married (and had been married for 30 years), that is the defendant’s position in this matter now before me. In the view of Pearce J, that argument was incorrect. His Honour held that the wife in such a situation was not without rights in the matrimonial home, pending the determination of a petition of separation, even though the home belonged solely to her husband.
Pearce J in Silverstone found support in the judgment of Denning LJ in Bendall v McWhirter (1952) 2 QB 466 and concluded that the wife “has a right to be in the matrimonial home while a petition is pending before this court, and this court is entitled to protect that right and ensure that pressure is not put on a wife to abandon her petition by evicting her from the home”. His Honour was “satisfied that if I let the husband go back to the house I am really driving her out.” The order was made to continue an injunction on the basis that it was necessary to protect the position of the wife pending the trial in respect of divorce proceedings including her claim to the furniture in the house, inter alia to “prevent her being bullied out of her remedy or deterred by pressure from seeking the help of the Court”.
The Supreme Court in Parry v Crooks, was of the opinion that the principle acted upon in Silverstone amounted to an accepted basis of legal principle that would justify the grant of an injunction in proceedings between domestic partners, in an appropriate case. In the words of King CJ:
I think that 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.
Zelling J did not disagree, in his four bases for the grant of an injunction in domestic causes.
Thus, in domestic relationship matters, there would appear to be power in the Supreme Court to grant an injunction to prevent certain behaviour or consequences, irrespective of the existence of a legal or equitable right to protect, or legal or equitable wrong to prevent. If that is so, such power also resides in the District Court, although limited to interlocutory relief by virtue of s 30 of the District Court Act.
There have been judgments in domestic relationship matters where a court has sought to justify the injunctive relief granted on the basis of the need to protect a legal right. The House of Lords decision in Davis v Johnson [1979] AC 264 was one such judgment. An injunction had been sought by the female party pursuant to a right under the Domestic Violence and Matrimonial Proceedings Act 1976, to exclude her (former) male partner from the flat.
This was a case where the unmarried parties had been living together in a flat with their child in a domestic relationship, both parties enjoying joint tenancy of the flat. Lord Scarman at page 348 of the judgment report made the following comments about the personal rights of a woman living with a man in a relationship in a home which was owned by the man:
The personal rights of an unmarried woman living with a man in the same household are very real. She has his licence to be in the home, a right which in appropriate cases the courts can and will protect: see Winter Garden Theatre (London) Limited v MillenniumProductions Limited [1948] AC 173, per Viscount Simon at pp.188-191; Binions v Evans [1972] CH. 359 per Lord Denning M.R. at p.367 and Tanner v Tanner [1975] 1 W.L.R. 1346. She has also her fundamental right to the integrity and safety of her person.
The reference in the passage above to the Winter Garden Theatre case makes it clear that Lord Scarman was speaking of a species of licence recognised by the law; a licence by permission: see also Binions v Evans.
In O’Kane v Fogarty (1985) 2 NSWLR 649 the New South Wales Supreme Court with jurisdiction under the De Facto Relationships Act 1984 (NSW) dealt with an application by the defendant for an injunction, inter alia, to restrain the plaintiff from annoying and molesting her. In the course of his reasons, Young J considered the heads of power under which, prior to the enactment of the legislation, the equitable remedy of an injunction might have been sought. In observing the court’s power to grant an injunction where damages were an inadequate remedy, His Honour opined that the technical basis for injuncting a nuisance had been that the plaintiff in an action in nuisance had a proprietary right to protect but, Young J continued at p 651 of the report:
In modern society, and this is reflected in what appears in the De Facto Relationships Act, it is equally, if not more, important to protect a right to personal integrity than it is to protect a right of property and as in previous years injunctions would be given freely to protect people from nuisances to property, so now the community expects this court to make orders to protect integrity of persons.
It seems that the principles relating to the grant of injunctions, at least in domestic relationship cases, have developed over the years to meet community expectations.
Indeed, in Australian Broadcasting Corporationv Lenah Game Meats Pty Limited (above), Gummow and Hayne JJ made the observation that an alleged interference with legal or equitable rights is not the only basis for an injunction. Their Honours remarked that:
The references to legal or equitable rights should not obscure the significant and traditional use of the injunction in other areas such as in the administration of public trusts for charitable purposes and in ensuring the observance of public law (at para 89).
Their Honours also referred to the developing state of the injunctive remedy in the following extract:
The injunctive remedy is still the subject of development in Courts exercising equitable jurisdiction (citing Cardile & Ors v LED Builders Pty Ltd (1999) 198 CLR 380 at 395, and with respect to public law, Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135) (at para 90).
It seems from a consideration of the authorities referred to above, that the following proposition is now justified: interlocutory injunctive relief is available to persons who were formerly in a domestic relationship, whether married or not, in appropriate circumstances of the kind described in Parry v Crooks where a court is empowered by statute or otherwise to grant injunctive relief. This does not depend on powers being available in legislation such as the Family Law Act (Cth) or the Domestic Partners Property Act. If there is jurisdiction in a court to hear and determine actions in relationship to partnership property under such legislation and in addition that court has power to grant injunctions, then the court may grant an injunction at the instigation of one party to a former relationship, where an action is pending (and perhaps also foreshadowed) in that court. Of course, the District Court has no power with respect to parties who are or were in a marital relationship, but only with respect to persons who were in a domestic relationship as the term is defined under the Domestic Partners Property Act 1996.
I have concluded that in the situation presented to this Court, whereby the defendant proposes to return to live in the house with the plaintiff, being the house formerly shared by the parties while in a domestic relationship, in the circumstances presented, the authorities point to the Court having a discretion to exercise its injunctive jurisdiction to order that the status quo remain pending the final determination of the proceedings.
It may also be said that the plaintiff has other bases upon which to seek an injunctive remedy from this Court. It may be argued that the plaintiff has a right to personal integrity of the kind referred to in O’Kane v Fogarty (above), justifying relief in appropriate circumstances. However, that basis is subsumed in the bases described by their Honours in Parry v Crooks as justifying injunctive intervention in domestic causes matters.
Now, it is appropriate in this matter to look to whether the action sought to be restrained (return of the defendant to the premises) would lead to a result for the plaintiff of molestation, harassment, abuse or intimidation designed to deter the plaintiff from pursuing a legal remedy open to her.
There is no suggestion that molestation or abuse would be a consequence of the defendant’s return to the premises.
The plaintiff asserts, inter alia, the following:
·she is not physically able to endure the stress of the defendant returning.
·she could not live in the premises with the defendant living there also.
·she could not afford to live elsewhere.
·she is not physically fit to move house.
·the defendant has indicated that he will return to live in the premises in order to “break” her and force her to accept a particular settlement proposal.
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 question is whether, in all of the circumstances, the return to living at the premises by the defendant, would amount to harassment or intimidation such as to deter the plaintiff from pursuing a legal remedy against the defendant. In Nguyen v Scheiff [2002] NSWSC 151, the Supreme Court of NSW considered the “persistent disturbance of a person, by conduct … can be sufficient to amount to harassment” (para 66). That was an application for injunction by one party under the Property (Relationships) Act 1984 (NSW), for an order restraining one party from further attending at the partnership premises and granting the other party exclusive use and occupation of the premises. In the opinion of the Judge, the power under s 53 of the Property (Relationships) Act to grant an injunction could only be exercised if the Court found a connection with domestic violence or harassment. The male partner had vacated the jointly owned premises, leaving the female partner to occupy them. His Honour concluded that there was a very real risk of unpleasantness between the parties, on a repeated basis, that would amount to persistent disturbance, should the former male partner return to live in the premises with the former female partner. His Honour determined that persistence disturbance of a person amounted to harassment of that person.
In Silverstone (above) Pearce J was satisfied that to let the husband return to the premises would be tantamount to driving the wife out. The Court also indicated that the wife should not be deterred by pressure from seeking remedy from the Court.
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.
Counsel for the plaintiff referred the Court to Davis v Davis (1983) FLC 91‑319. That matter concerned an application for an injunction brought under s 114(f) of the Family Law Act 1975 whereby the Family Court, may “grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including: … (f) an injunction relating to the use or occupancy of the matrimonial home”. The wife had sought an order that she have sole and exclusive occupation of the matrimonial home. What was considered sufficient for a proper exercise of the discretion, according to the Full Court of the Family Court in Davis, was “that the Court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together”. I have not used the test articulated in this judgment, even though it is upon one view, no more than a common sense rationalisation of the “molestation, harassment, abuse or intimidation designed to deter the plaintiff from pursuing a legal remedy open to her” approach. If this is the test – and it is difficult to see why it would not be applicable here – I am satisfied that the situation between the parties in this matter is such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together, and the plaintiff’s application must succeed.
The Balance of Convenience
To a large extent, I have already considered whether the balance of convenience lies with the plaintiff sufficient that the injunction should be granted. Certainly, the plaintiff’s health and personal circumstances weigh the scale in her favour, but that is not the only consideration. The defendant is the sole registered proprietor of the Torrensville premises, and that is a matter which must be put in the scales, together with his desire to return to the premises to live, be available to assist his elderly neighbour at Torrensville and to cease being a burden on his son, with whom he presently resides.
I have been mindful that the premises have been the plaintiff’s home for approximately 13 years, that she has continued living there since the break down of the partnership with the defendant’s consent, and that finding and moving to suitable alternative accommodation would be far more burdensome to her than to the defendant. On the other hand, the defendant is the sole registered proprietor of the premises and resided there over approximately 23 years – a much longer period than the plaintiff. However, after the breakdown of the relationship, the defendant departed the premises, and consented to the plaintiff continuing to reside at the premises pending agreement concerning the division of the partnership property, in July 2006. He has the financial means to establish himself in different accommodation, should he consider it necessary to depart his son’s premises, as he contends.
The injunction sought would change nothing with respect to the defendant’s proprietary interest in the Torrensville premises. The plaintiff offers the usual form of undertaking to the Court, should the injunctive relief be granted. Thus the defendant’s proprietary interest in the property would be protected for the life of the injunction.
The defendant’s proprietary rights in the premises are not absolute, having regard to the domestic partnership existed between him and the plaintiff and the provisions of the Domestic Partners Property Act. Property interests may be adjusted by a judgment in the proceedings now before the Court.
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.
It is not necessary to consider any other matter. The proceedings should move forward as swiftly as possible towards the determination of whether and if so what, order or orders for the division of property between the parties, should be made.
The plaintiff’s application will be granted.
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