Duckham v Duckham

BACKGROUND

1. The background to this matter is that an arrangement was entered into between the plaintiff and the defendant, who are sisters, in, it appears, 2017 pursuant to which there was some agreement for the plaintiff to advance monies as requested to the defendant who was in financial difficulties, it appears, because of her involvement in [legal] proceedings. The terms of that agreement are in dispute. In the affidavit of the plaintiff dated 19 October 2023 in paragraphs eight to ten, which, contrary to oral terms set out thereafter in the affidavit, are not in a first person conversation, the terms of the agreement are summarised. The plaintiff claims that she agreed to lend the defendant money as and when requested, on the basis that any money lent was repayable on demand and would attract interest at a compounding rate of 5% per annum.
2. It is said that monies were advanced by the plaintiff and that demands have been made by the plaintiff to the defendant to repay the monies and the defendant has not done so. Accordingly, it is alleged that the defendant is liable to the plaintiff for the monies outstanding.
3. In her Defence, which was filed on 18 August 2023, the defendant does not dispute that there was an arrangement entered into with her sister by which her sister would lend her money and that she would repay it. She does not dispute that monies were advanced, and she does not dispute that she has repaid some of the monies. She also does not dispute the amount outstanding, as alleged in the Statement of Claim, in the amount of $238,159.01, although I note that the plaintiff, in her affidavit, says that an additional amount was repaid to slightly reduce that amount.
4. What the defendant claims is that the agreement between the parties did not have a term of money being repayable on demand, but a term that the monies were only repayable when the defendant was able to do so.
5. It seems to be accepted from interchanges between the defendant and the Court when the defendant was taken to the email dated 17 December 2020, which is at page 106 to the exhibit to the plaintiff's affidavit, that there was some agreement in 2019 whereby the defendant did agree to pay 5% interest to the plaintiff on the monies lent. The real issue, therefore, seems to be whether the monies were repayable on demand or only when the defendant was able to do so.

CROSS-CLAIM

1. In relation to the proposed Cross-Claim that is sought to be filed by the defendant, in my view, leave should not be granted to file it. The District Court of New South Wales is an inferior court of record and has the jurisdiction only conferred on it by statue either expressly or by necessary implication: Pelechowski v The Registrar Court of Appeal (NSW) (1999) 198 CLR 435 and Mohammed v Unicomb [2017] NSWCA 65 at [38]. This Court has a limited jurisdiction in certain circumstances to make declarations: see paragraph 45 of Mohammed v Unicomb, above. The jurisdiction of the Court is limited by a combination of sections in the District Court Act: see section 4, section 9, section 44, section 46 and section 134. What is sought to be filed in the Cross-Claim is a pleading seeking a complex series of relief relying principally on relief under various Victorian legislation. This Court cannot grant that relief as it does not fall within its jurisdiction to do so.
2. In considering this, I have taken into account the judgment of his Honour, Leeming JA, in Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150 at paragraph 82 and following where his Honour explains in some detail this Court's jurisdiction. His Honour noted in paragraph 98 that there was a general principle that laws conferring jurisdiction are to be construed broadly and laws denying jurisdiction are to be construed narrowly. But quite apart from that, there is no power in this Court to make most of the orders sought in the Cross-Claim and, accordingly, this Court cannot grant leave to file the Cross-Claim. The appropriate place to do that is in the Supreme Court of Victoria or possibly the County Court of Victoria.
3. The Cross-Claim also raises potential relief under the Contracts Review Act 1980 (NSW): see the relief sought in paragraphs 11 and 13 of the Cross‑Claim.
4. The pleading proper seems also to seek relief under the Contracts Review Act: see paragraphs 24 and 25. I find this pleading to be in vague terms. Any Cross-Claim seeking relief, whether under the Contracts Review Act or otherwise, should clearly plead the basis for the relief and provide particulars of the particular circumstances intending to indicate that the contract is unfair if the plaintiff's version of the contract is accepted.
5. In relation to the Defence already existing, paragraph 10 of it states that the plaintiff is estopped from claiming the balances due or payable by demand, by virtue of the doctrine of unconscionability under the "general law". This seems to be relying on the terms of section 20 of the Australian Consumer Law although it may be that it is relying on unconscionability in equity having regard to the circumstances of the defendant. That needs to be clarified.
6. The real issue in the circumstances that I have outlined, where I have found that this Court does not have the jurisdiction sought to be relied upon in the Cross-Claim, is whether summary judgment should be granted as claimed by the plaintiff.

AUTHORITIES ON SUMMARY JUDGMENT

1. It is well established by clear authority that summary judgment against a party should only be given in the very clearest of cases. If authority is required for that principle, I refer to Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130. There are various later High Court decisions analysing these principles. Generally, as I indicated, summary judgment should only be given in the clearest of cases. The cases refer in particular to the analysis by Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 CLR 516 at [32]. Their Honours stated that the various cases on summary judgment all seem to be using phrases which, although different, are saying that a court should not exercise its powers for summary determination of a proceeding except in clear cases where any defence or claim is not arguable or not fairly arguable.
2. See also the analysis of White JA in Burton v The Office of the Director of Public Prosecutions [2019] NSWCA 245 paragraph 47 and following and by President Beazley, as her Honour then was, in AD v Commissioner for Australian Federal Police [2018] NSWCA 89 at paragraph 10 and following.
3. Although here, the proposed Cross-Claim and the Defence are vague and lacking in specificity, in my view, it is in the interests of justice that the defendant be given an opportunity to provide greater particularisation in relation to paragraph 10 of the Defence and also to provide a further draft of any Cross-Claim setting out matters relied upon in relation to areas where this Court does have jurisdiction such as a defence of unconscionability in equity or in relation to relief under the Contracts Review Act whether by Cross-Claim or defence in circumstances of an action under section 44 of the District Court Act 1973 (NSW) which seems to be relied on in the present case.

COSTS

1. As the defendant has failed in her Notice of Motion, I see no reason why she should not pay the costs of the Notice of Motion as agreed or assessed. In relation to the indulgence given to her to provide any further version of her Cross-Claim and particulars of paragraph 10 of the Defence, this also involves an adjournment. In my view, it is only fair, exercising the discretion as to costs which I have under section 98 of the Civil Procedure Act 2005 (NSW), that she should pay the costs involved in that. It was put forward by Ms Duckham, the defendant, that a costs order should not be made as she is in a straightened financial position and that it is all part of a greater factual controversy between family members, seemingly relying on the matters referred to in the earlier paragraphs of the Cross‑Claim. In my view, those matters do not weigh against the orders for costs I propose as it is the fault in the pleadings which are giving rise to the failure of her Notice of Motion and the need for further and better particulars.
2. In the circumstances, I have proposed, in discussion with the parties, orders dealing with the two Notices of Motion and ordering the defendant to provide particulars and to file a further Notice of Motion. In my view, those orders should be made. Mr Guy, who appears for the plaintiff, whilst not conceding that an opportunity should be given to the defendant to properly plead and particularise her case, appeared to accept that, subject to cost issues, it was not necessarily inappropriate to give the leave for the defendant to have an opportunity to clarify her case. Even if he opposed that order, that should, in my view, in the interests of justice and in all the circumstances, be made.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2023