SCHULTZ v PRICE - [2007] SADC 98

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 98
THE 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.

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 SCHULTZ v PRICE

Details

AGLC: Schultz v Price [2007] SADC 98
Case: [2007] SADC 98
Decision Date: 24 September 2007

CaseChat Overview and Summary

The plaintiff, Schultz, filed an application for an interlocutory injunction under the Domestic Partners Property Act 1996 against Price. Schultz sought relief due to a dispute over the division of property acquired during a de facto relationship. The court was tasked with determining whether there was a sufficient basis for granting equitable relief and balancing the convenience of both parties.

The central legal issue was whether the court should intervene with an interlocutory injunction, considering the nature of the relationship and the property division. The court had to assess whether Schultz had a valid claim under the Act and if such relief would be appropriate in the circumstances. The court also needed to weigh the balance of convenience to decide which party would suffer greater hardship if the injunction was not granted.

The court concluded that the application should be granted, finding that a proper basis existed for equitable relief. The court considered the unique nature of domestic partnerships and the potential for significant hardship if the application was denied. It determined that the balance of convenience favoured Schultz, indicating that denying the injunction would result in greater harm. Consequently, the application was successful, and an interlocutory injunction was issued in favour of Schultz.

The final orders included a grant of an interlocutory injunction, directing Price to refrain from disposing of certain jointly-held property until the final determination of the case. The court also ordered further proceedings to address the equitable division of the property in question.

Orders