Wilson v Vater (No 1) - [2008] SASC 7

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
WILSON v VATER (NO 1)
[2008] SASC 7
Reasons of Judge Lunn a Master of the Supreme Court
21 January 2008
PROCEDURE
6R 33 requiring a plaintiff to give 90 days notice and make an offer prior to commencing an action - 6R 33 confined to actions "based on a monetary" claim - held 6R 33 did not apply to an action solely seeking relief under the Domestic Partners Property Act 1996 as it was not based on a monetary claim - plaintiff's application for dispensation from 6R 33 and defendant's application for a stay each dismissed.

WILSON v VATER (NO 1)
[2008] SASC 7
Reasons on plaintiff’s application for dispensation from making an offer under 6R 33 before instituting the action.

JUDGE LUNN: The plaintiff instituted this action on 11 September 2007. In her statement of claim she pleads that she had lived together with the defendant on a genuine domestic basis in a close personal relationship from about 1973 until October 2004. She pleads various property and commercial dealings in the period of co-habitation involving herself and the defendant. The prayer for relief is pleaded as follows:
The remedies sought are:
1An order that the time within which the plaintiff might bring this proceeding be extended to the date upon which this action was commenced pursuant to section 993) of the Domestic Partners Property Act 1996.
2A declaration that the plaintiff and the defendant were parties to a domestic partnership within the meaning of the Act from 1973 until October 2004.
3An Order that the property of the relationship be valued by appropriately qualified and licensed valuers.
4An Order that the assets of the Superannuation Fund be valued by appropriate qualified and licensed valuers.
5A declaration as to the value of:
5.1the property of the relationship; and
5.2the plaintiff’s member account balance in the Superannuation Fund.
6An Order for the division of the property of the relationship pursuant to section 10 of the Act.
7An Order that the costs of the action be paid out of the property of the relationship.
No cause of action is pleaded other than those under the Domestic Partners Property Act 1996 (“the Act”).
No defence has yet been filed. On the affidavits of the defendant’s solicitors it appears that some domestic partnership between the parties is conceded, but the defendant says it terminated in November 2004.
On 15 October 2007 the defendant took out an application seeking to strike out or stay the action. One of the grounds for seeking a stay was that the plaintiff had not complied with 6R 33. On 26 October 2007 the plaintiff took out an application seeking that this action be excluded from the application of R 33. The plaintiff concedes that she had not given any notice of her claim, or made any offer, in the manner required by 6R 33. On 26 October I directed that the plaintiff’s application, and the defendant’s application as far as…

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 Wilson v Vater (No 1)

Details

AGLC: Wilson v Vater (No 1) [2008] SASC 7
Case: [2008] SASC 7
Decision Date: 21 January 2008

CaseChat Overview and Summary

The plaintiff, Wilson, filed a claim against the defendant, Vater, in the Supreme Court of South Australia seeking relief under the Domestic Partners Property Act 1996. Wilson sought a declaration that she and Vater had been in a domestic partnership from 1973 until October 2004, as well as an order for the division of property from the relationship. Vater applied to stay the proceedings on the basis that Wilson had not complied with the requirement in Rule 33 of the Supreme Court Civil Procedure Rules 2006 (SA) to give 90 days’ notice and make an offer prior to commencing the action. Wilson applied for dispensation from the requirement in Rule 33, arguing that it did not apply to actions seeking relief solely under the Domestic Partners Property Act 1996. The court had to decide whether Rule 33 applied to actions solely seeking relief under the Domestic Partners Property Act 1996.

The court held that Rule 33 did not apply to actions solely seeking relief under the Domestic Partners Property Act 1996 because such actions were not based on a monetary claim. Rule 33 applied only to actions based on a monetary claim, which required the cause of action to be able to be characterised as monetary and only as monetary. In this case, the plaintiff's causes of action were statutory and involved the division of property between the parties. A judgment in monetary terms was only one of several possibilities under the Act. Therefore, it could not be said that an action solely involving the Act could be an action based on a monetary claim. The plaintiff's application for dispensation from Rule 33 and Vater's application for a stay were both dismissed.

The court dismissed the plaintiff's application for dispensation from Rule 33 and Vater's application for a stay. The court reserved costs and scheduled a further directions hearing to deal with the balance of Vater's application.

Orders