Wilson v Sewell - [2009] WADC 151

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WILSON -v- SEWELL [2009] WADC 151

CORAM: FENBURY DCJ

HEARD: 14 AUGUST 2009

DELIVERED : 7 OCTOBER 2009

FILE NO/S: CIV 3056 of 2008

BETWEEN: IAN WILSON
Plaintiff
AND
JULIA SEWELL
Defendant

Catchwords:

Jurisdiction - Family law - Alleged oral agreement concerning improvements and maintenance to property of parties - Whether District Court of Western Australia has jurisdiction to determine

Legislation:

Family Law Act 1975

Result:

Summons to strike out claim dismissed

Representation:

Counsel:

Plaintiff: In Person
Defendant: Mr W C McDonald

Solicitors:

Plaintiff: Not applicable
Defendant: Hudson Henning Goodman

Case(s) referred to in judgment(s):

Bates v Priestley (1989) 97 FLR 310
Haywood v Botka [2005] WADC 248
Perlman v Perlman (1984) 155 CLR 474

FENBURY DCJ: This is the defendant's application to strikeout the plaintiff's statement of claim and for an order that the action be dismissed for want of jurisdiction.
The basis of the defendant's contention is that the issue between the parties is a "matrimonial cause" and, therefore, by reason of the provisions of the Family Law Act 1975 (Cth) s 31 jurisdiction is exclusively conferred on the Family Court.
The plaintiff, who is a legal practitioner not in practice, asserts that the action is not a matrimonial cause and is properly instituted in this Court.
The plaintiff and defendant (that is the respondent and the applicant) were married on 31 August 1986.
The family home was at Glendough Street in Perth. It was registered in the name of the defendant.
The plaintiff and the defendant were "divorced in February 2003".
Neither of the parties commenced proceedings for property settlement in the Family Court. Given 12 months have passed since the decree became absolute, neither could now do so without leave unless they both consented. (Section 44.3 of Family Law Act 1975).
Some four years after the decree became absolute, in about August 2007 according to the defendant, the alleged agreement was entered into.
By par 4 of the amended statement of claim it can be seen that the plaintiff alleges an oral agreement "whereby the plaintiff agreed to personally undertake maintenance and improvement work at his expense in all things upon the home and that following completion of the works the home was to be sold and in consideration therefore the plaintiff would receive 18 per cent of the net sale proceeds of the home from the defendant".
There is then particularisation of works allegedly done and/or paid for by the plaintiff.
The plaintiff's claim is based upon breach of an oral agreement for work done and materials supplied and seeks damages and interest.
The claim relates to "maintenance and improvement" work carried out on a property that was the former matrimonial home of the plaintiff and defendant. The question is whether proceedings for damages pursuant to an oral agreement made between the parties in respect of the making of repairs to their former home is a matrimonial cause within the exclusive jurisdiction of the Family Court.
Having regard to the decision of the High Court in Perlman v Perlman (1984) 155 CLR 474, it would appear the answer to this question is in the negative. In that case the parties were divorced on 4 July 1978 and, six days later, they executed a deed setting out their agreement about maintenance. One of the parties breached the agreement. The other sued in the Supreme Court.
As Gibbs CJ observed at p 486:
"… the mere fact that the circumstances of the case involved the parties to a marriage does not mean that the proceedings arise out of the marital relationship. … the proceedings in the present case clearly do not arise out of a marital relationship; they arise from the fact that the divorced husband has failed to fulfil his obligations under the deed."
In Bates v Priestley (1989) 97 FLR 310 at 324 a decision of the Court of Appeal in New South Wales, by reference to the head note, the appellant claimed that proceedings in the District Court of New South Wales to recover the amount payable under a deed of acknowledgement of debt were within the exclusive jurisdiction of the Family Court and that the District Court had no jurisdiction in respect of the claim.
Hope AJA at 327 in referring to the definition of "matrimonial cause" explained as follows:
"It will be seen that, in order to fall within this definition, the proceedings, that is, the proceedings of the District Court, must be proceedings with respect to the property of the parties to the previous marriage or either of them and that they must arise out of the marital relationship. It is not sufficient to establish that, for example, the deed arose out of the marital relationship; it is the proceedings that must have so arisen. The construction of the various definitions of 'matrimonial cause' and their application to any particular set of facts are not without difficulty. That this is so is shown by a number of reported decisions on their construction or application. However, in my opinion the questions to be resolved in this case are the subject of authority in the High Court which either must or should be followed. That authority is to be found in Perlman v Perlman …"
The plaintiff's action in the case before this Court arises from the fact that the divorced defendant "has failed to fulfil her obligations under an alleged oral agreement". The fact that the agreement in Perlman (supra) was a registered maintenance agreement and the agreement in this case was an oral agreement for work done in the form of property repairs does not affect the issue.
Counsel for the defendant put that, having regard to the alleged terms of the oral agreement, and in particular the terms concerning rates of payment for the alleged services, it is a de facto property settlement that is being sought.
That may be so, but it does not change the nature of the proceedings which is an action for breach of contract for work done and perhaps materials supplied.
Counsel for the defendant referred to Haywood v Botka [2005] WADC 248 an unreported decision of a Judge of the District Court in Western Australia. In that case one party to a marriage sued the other for breach of an agreement to split the proceeds of sale of the matrimonial home. One party kept the entire proceeds in breach of the agreement. That action was held to be a "matrimonial cause".
Obviously Haywood v Botka (supra) can be distinguished on the facts. The agreement was, in terms, a property settlement. In the case before the Court the agreement is as to "improvement and maintenance" of property. In any event Perlman was not referred to in the judgment. One wonders whether it would have affected the matter if drawn to his Honour's attention.
Without further consideration, for which there seems to me to be no need, I dismiss the defendant's application that the plaintiff's statement of claim be struck out and order the defendant to pay the costs of the application to be taxed if not agreed with liberty to apply.