Youll v Robinson
[2001] WASC 273
YOULL -v- ROBINSON [2001] WASC 273
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 273 | |
| Case No: | CIV:2214/2001 | 3 OCTOBER 2001 | |
| Coram: | MASTER BREDMEYER | 5/10/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | IAN WILLIAM YOULL PENELOPE JANE HURST ROBINSON |
Catchwords: | Practice Default judgment Whether arguable defence Defendant relying on Family Court order Family Court order made without jurisdiction Agreement between parties embraced in Family Court order, arguably valid |
Legislation: | Property Law Act 1969, s 34, s 126 |
Case References: | In the Marriage of N G & D Horne (1997) 21 Fam LR 363 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
PENELOPE JANE HURST ROBINSON
Defendant
Catchwords:
Practice - Default judgment - Whether arguable defence - Defendant relying on Family Court order - Family Court order made without jurisdiction - Agreement between parties embraced in Family Court order, arguably valid
Legislation:
Property Law Act 1969, s 34, s 126
Result:
Application allowed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr N D Billington
Defendant : In person
Solicitors:
Plaintiff : Cahill Billington
Defendant : In person
Case(s) referred to in judgment(s):
In the Marriage of N G & D Horne (1997) 21 Fam LR 363
Case(s) also cited:
Nil
(Page 3)
1 MASTER BREDMEYER: This is an application by the defendant dated 19 September 2001 to set aside a judgment entered herein in default of appearance on 12 September 2001. The judgment is in these terms:
"1. Judgment be entered for the Plaintiff against the Defendant in default of Appearance.
2. The land referred to in the Statement of Claim, being 17 Vine Street, North Perth in the State of Western Australia, being more particularly described as portion of Swan Location 647 and being Lot 47 on Plan 1493 (Sheet 1) and being the whole of the land comprised in Certificate of Title Volume 1545 Folio 023 ('the Land') be sold by public auction free from the encumbrances (if any) of such as the encumbrancers as shall consent to the sale and subject to the encumbrances of such of them as shall not consent.
3. The Land be sold subject to the 2000 Law Society General Conditions for Sale of Land.
4. The reserve price for the Land shall be $220,000.00.
5. Messrs Cahill Billington, Solicitors, have the conduct of the sale and be authorised to instruct a licensed real estate agent for that purpose.
6. The real estate agent's and auctioneer's remuneration be fixed by agreement between the real estate agents and the Plaintiff's solicitors.
7. Each of the Plaintiff and the Defendant be at liberty to bid at the auction."
2 Ms Robinson, who is a high school teacher/librarian and who is unrepresented, has filed an affidavit in support of her application. She has explained her non-appearance in this action, as follows:
"14. I apologise for not responding with a Memorandum of Appearance, within the time frame allowed. I have attended over 280 appearances with Mr Youll in various courts, culminating in the sickness of our children and Mr Youll being prosecuted for breaking the restraining order. I did not have the heart for more legal matters, but
(Page 4)
- realise it is in the interests of justice and court proceedings to make this Court aware of these outstanding matters."
3 I accept that as a reasonable explanation for the delay and I note that this application has been brought very promptly. In her affidavit she sets out a defence. By way of background I note that the parties were in a de facto relationship and have two sons - Kim David Robinson, born 17 November 1990 and Aaron Gough Robinson, born 22 January 1993. They own the property at 17 Vine Street, North Perth, as tenants in common in equal shares and have been the registered proprietors of that property since January 1990. Ms Robinson lives in the house with her two sons and with two older children of a previous relationship. The parties separated in 1993.
4 On 6 February 1995 a Registrar of the Family Court made a number of orders relating to the custody of the children etc, and they include the following:
"5. Until the child AARON GOUGH ROBINSON attains the age of 18 years and except as provided in paragraph 6 hereof, the Respondent [ie Ms Robinson] have sole use and occupation of the jointly owned property situate at and known as 17 Vine Street, North Perth being more particularly described as:
'Portion of Swan Location 647 and being Lot 47 on Plan 1493 and being the whole of the land comprised in Certificate of Title Volume 1545 Folio 23, (the property),'
- with the Respondent indemnifying the Applicant for all payments in relation to any mortgage that may from time to time be registered over the said property and in relation to all utility charges relating to the property.
6. Notwithstanding paragraph 7 hereof the Applicant shall have the use of half of the undercover area at the rear of the property for storage purposes.
7. ...
(Page 5)
- 8. The parties each pay one half of all shire and water rates for the property and save for utility charges share such outgoings equally."
5 On 11 June 2001 the Court of Petty Sessions, under the provisions of the Family Law Act 1975 and the Family Court Act 1975, made four orders. I quote the first of those orders:
"1. Until further order of the Court, all previous parenting orders be discharged."
6 I doubt if order 5 of 6 February 1995 is revoked by that order, as it does not appear to be a parenting order. In view of the view that I express later, it is not necessary for me to decide whether order 5 of February 1995 has been repealed by the June 2001 order or not.
7 In 1999 Mr Youll applied to the Family Court for a variation of the consent orders made in February 1995 and, in particular, of order 5. That application came before Thackray AJ and was heard on 5 and 6 July and 7 September 1999 and judgment was delivered on 7 January 2000. The reasons for decision cover 19 pages and resulted in some orders altering the access arrangements. The Judge considered at length the legality of order 5 and its statutory basis. At 11, he said:
"Accordingly, unless the order was made as an exercise of the welfare jurisdiction it was invalid and the respondent's case must fail."
- He then went on to consider at length the question posed and, at 16, said this:
" ... I have formed the view that the court lacked jurisdiction to make the exclusive occupation order as an exercise of the welfare jurisdiction."
At the same page he said it was a conclusion "which I reach with considerable regret".
8 At 18, he said this:
"ORDERS
Although I have accepted that the court did not have jurisdiction to make the exclusive occupation order it does not follow that I should discharge the order as asked by the applicant. Indeed I consider it would be inappropriate for me to do so.
(Page 6)
- I make no comment on whether it would be appropriate for the applicant now to seek leave to file an application out of time to review/appeal the decision of the Deputy Registrar who made the consent order or whether the applicant is at liberty to ignore the order as having no legal effect (as to which see Horne, supra at 83, 915-6)."
9 Mr Youll applied to the Family Court on 21 January 2000 seeking leave to have an out of time review/appeal to set aside paragraphs 5 and 8 of the final consent orders of February 1995. That application was heard by Martin J of the Family Court on 21 February 2000 and reasons for decision were delivered on 9 June 2000. At that hearing, Mr Youll, the applicant, appeared in person and Ms Robinson was represented by Mr L Mather, a counsel instructed by Legal Aid. Her Honour published six pages of reasons and granted an extension of time of a further 10 days for the applicant to apply to review the Registrar's decision. In the course of those reasons, she said this:
"10. As to whether there is a substantial issue to be raised on the review, it has been determined that the Registrar had no jurisdiction to make the order, and therefore appears very likely that an application for review may be successful. Certainly, the fact that the order was made without jurisdiction, would be a defence to any application to enforce the order.
...
12. In the present case, I have determined that, despite the applicant's failure to provide any adequate explanation of the delay, the interests of justice require that he be given the right to apply to review the decision. In any event, it is arguable that the order has no force or effect."
10 As stated, the decision of Martin J was delivered on 9 June 2000. Mr Youll did not apply for review within the 10 day period allowed by the Judge. Instead, he commenced this action under s 126 of the Property Law Act 1969 for the court to order a sale of the property.
11 In addition to the two judgments already quoted, the plaintiff relies on In the Marriage of N G & D Horne (1997) 21 Fam LR 363. That was a decision of the Full Court of the Family Court on appeal from Western Australia. In that case, the parties were married but the Full Court held that a Deputy Registrar had no power to make a property order under s 70
(Page 7)
- of the Family Law Act 1975 (Cth) by the consent of the parties. The order made by the Registrar under O 9A r 4(1) of the Family Law Rules was made without jurisdiction and was invalid. The February 1995 order made in this case was similarly an order purporting to be made under the Family Law Act 1995 and was made by consent. It is said to have been made by consent pursuant to O 31 r 8.
12 Faced with the decisions of Thackray AJ and Martin J in this case, which are admittedly dicta, but powerful dicta supported by reasons, and faced with the decision in Horne, I conclude that the Deputy Registrar's fifth order of February 1995 was made without jurisdiction and has no force and effect, as an order. However, I think it arguable that it is effective as an agreement creating an interest in land signed by Mr Youll: see s 34 of the Property Law Act 1969 which says, in effect, that no interest in land can be created except if it is done in writing, signed by the person creating the interest etc. Mr Youll, and for that matter, Ms Robinson, signed the agreement which got embraced in the orders made by the Deputy Registrar. I think it is arguable that that creates an equitable interest in the land, giving Ms Robinson exclusive right to use the property until Aaron turns 18 years, subject to certain conditions about paying rates etc. I consider that argument amounts to an arguable defence which, together with her explanation for allowing the order to go by default, justifies a setting aside of the default judgment.
13 Section 126(1) of the Property Law Act 1969 provides, and I paraphrase, that where a property is owned jointly and one party owns a half share or more of the land, and it is not practical to partition the land, that party can apply to have the land sold and the court "shall, unless it sees good reason to the contrary, direct a sale accordingly". In the vast majority of cases under s 126, in my experience, the court directs a sale of the land. But it seems to me in this case that Ms Robinson may have an argument based on the 1995 agreement with Mr Youll that she should stay in the house, paying all expenses, until the younger son Aaron turns 18 years. The court may regard that as a "good reason to the contrary". For this additional reason, I consider Ms Robinson has raised an arguable defence and that the default judgment of 19 September 2001 should be set aside.
14 The orders will be:
1. Default judgment entered herein on 19 September 2001 be set aside.
(Page 8)
- 2. Costs of the application and thrown away by the entry of the judgment be reserved. (They can be argued on another occasion.)
3. Action adjourned to Masters Chambers on Wednesday 31 October 2001 at 10.30 am.
15 I have adjourned the action to Masters Chambers, as set out in order 3, in the hope that the parties may consider a settlement. Under the 1995 agreement, Ms Robinson may be able to resist the plaintiff's application for orders for sale under s 126 until Aaron turns 18. However, at the end of that period, I consider it most unlikely that she would be able to resist a s 126 application then. I understand that she is very happy in the house and would like to stay there and would like to buy out Mr Youll's half share but has a problem raising the finance. If she were to stay in the house until Aaron turned 18, the value of the house would have risen and she would have to find a bigger sum to pay out Mr Youll. It may be to her advantage to agree with Mr Youll, through his solicitor, on a pay-out figure now and borrow the necessary sum from a bank, family or friends, and to agree to orders whereby she pays out Mr Youll and gets a transfer of his half share in the property to her.
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