Tight v Guo

[2020] NSWSC 1567

Supreme Court

New South Wales

Medium Neutral Citation:

Tight v Guo [2020] NSWSC 1567

Hearing dates:

6 November 2020

Date of orders:

6 November 2020

Decision date:

06 November 2020

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Judgment for the plaintiff for possession of the land comprised in 10/975269 being the land situated at and known as House No. 2, 204 Evans Street, Rozelle NSW 2039.

2. The plaintiff is granted leave to issue a writ of possession to enforce the judgment of the Court, such writ not to be executed before 18 December 2020.

3. The defendant is to pay the plaintiff’s costs of the proceedings.

Catchwords:

LAND LAW - possession of land – claim by registered proprietor against occupier – where occupier defends claim on the basis of being the de facto partner of the plaintiff – where the defendant later makes claim in the Federal Circuit Court seeking property orders arising out of de facto relationship – whether such a claim provides a defence to a claim for possession – whether such a claim amounts to a caveatable interest

COSTS – party/party – general rule that costs follow the event – proceedings settled with no agreement as to costs – whether costs order should be made – where no arguable defence disclosed

Legislation Cited:

Family Law Act 1975 (Cth)

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

Cases Cited:

Bethian Pty Ltd v Green (1973) FLR 11579

Dykstra v Dykstra (1991) 22 NSWLR 556

Holder v Zeiher [2014] NSWSC 556

Morling v Morling (1992) 16 Fam LR 161.

Re Minister for Immigration and Ethnic Affairs (Cth): Ex Parte Lai Qin (1997) 186 CLR 622

Wilkes v Bykowski [2016] NSWSC 1685

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Nicholas Tight (Plaintiff)
Hui Guo (Defendant)

Representation:

Counsel:
S Gray (Plaintiff)
D Delfino (Defendant)

Solicitors:
Broun Abrahams Burreket Lawyers (Plaintiff)
Delfino & Delfino Solicitors (Defendant)

File Number(s):

2020/81453

Publication restriction:

Nil

Judgment

1. These proceedings commenced on 13 March 2020. The plaintiff sought possession of land in Evans Street, Rozelle in respect of which he was the registered proprietor. I shall refer to the proceedings as “the possession proceedings”. The defendant was a person who was a friend of his who asserted that she had been in a de facto relationship with him.

2. Subsequent to the filing of the possession proceedings, the defendant commenced proceedings in the Federal Circuit Court on 4 May 2020 (“the federal proceedings”) in which she asserted that she and the plaintiff, in this Court, had been in a de facto relationship and sought (inter alia) an order for a right of exclusive occupation of the property in Evans Street, Rozelle.

3. There were a number of directions hearings before me at an early stage in the possession proceedings. The plaintiff in this court had indicated an intention to seek that the possession proceedings be cross-vested to the Family Court. Subsequently the plaintiff changed his mind about that and at least from September 2020 sought to pursue the possession proceedings. The defendant on the other hand had indicated that at some point she would be seeking either in this court a stay of the possession proceedings or in the federal jurisdiction an anti-suit injunction against the plaintiff in this court from pursuing the possession proceedings.

4. None of these intended courses of action came to fruition. Part of the reason for that appears to have been that until recently, the proceedings in the federal jurisdiction remained in the Federal Circuit Court. In those circumstances, there was little point in cross-vesting the possession proceedings to the Family Court when the federal proceedings had themselves not been referred to the Family Court. The Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) does not permit proceedings to be cross-vested to the Federal Circuit Court.

5. Nevertheless, the position is that the plaintiff sought possession in this court, and ultimately agreement was reached between the parties that the plaintiff was entitled to possession of the land, and that leave should be given to issue a writ of possession, although an agreed date for the execution of that writ was also agreed.

6. The parties have not agreed on who should pay the costs or whether a costs order at all should be made in relation to the possession proceedings. The plaintiff seeks the costs of those proceedings and the defendant resists the costs of those proceedings.

7. The situation often arises where proceedings are settled without an agreement for costs where a dispute subsequently arises. Principles associated with how costs are to be dealt with in such a situation were dealt with by McHugh J in Re Minister for Immigration and Ethnic Affairs (Cth): Ex Parte Lai Qin (1997) 186 CLR 622. His Honour said (at 625):

…[I]n some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare.

8. In the present case, there is sufficient authority that a defence to a possession claim based on a right to make a claim under either the Family Law Act or by reason of a de facto relationship does not constitute a defence to a claim for possession: Holder v Zeiher [2014] NSWSC 556; Wilkes v Bykowski [2016] NSWSC 1685. Similarly, and for similar reasons, there is ample authority that a claim of a right of action alleging a de facto relationship or some right under the Family Law Act 1975 (Cth) arising out of a marriage does not constitute a caveatable interest: Bethian Pty Ltd v Green (1973) FLR 11,579; Dykstra v Dykstra (1991) 22 NSWLR 556; Morling v Morling (1992) 16 Fam LR 161.

9. In those circumstances, it appears to me that this case falls within the rare group of cases identified by McHugh J in Ex Parte Lai Qin. I am entirely satisfied that if the possession proceedings had run to trial the plaintiff would have been successful, because the defence raised by the defendant did not constitute a defence to a claim for possession, notwithstanding that the defendant might be able to establish other rights in the Family Court arising out of any de facto relationship.

10. For those reasons, I consider that the defendant should pay the plaintiff's costs of the present proceedings. Whether that includes the costs of all of the adjournments that were brought about by reason of the intention of the parties at various stages to transfer proceedings or cross-vest proceedings will be ultimately a matter for agreement between the parties, or a costs assessor if agreement cannot be reached.

11. I make these orders:

1. There will be judgment for plaintiff for possession of the land comprised in Folio Identifier 10/975269 being the land situated at and known as House No 2, 204 Evans Street, Rozelle NSW.

2. Leave is granted to the plaintiff to issue a writ of possession to enforce the judgment of the court, such writ not to be executed prior to 18 December 2020.

3. The defendant is to pay the plaintiff’s costs of the proceedings.   

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Decision last updated: 06 November 2020