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[2014] NSWSC 1225
Supreme Court of NSW
2014-08-27
Original judgment source is linked above.
Judgment 1HER HONOUR: By notice of motion filed 18 July 2014, the first defendant seeks an order pursuant to s 5(1)(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) that these proceedings be transferred to the Family Court of Australia, Sydney Registry. 2The first defendant also sought that the Court set aside all garnishee orders in respect of practice fees due and payable to the first defendant. However, at the hearing before me this application was amended to seek an order that the garnishee order be varied. 3The plaintiff relied upon the affidavits of her solicitor Neale Stuart Marshall, sworn 16 May 2014, 21 July 2014, 11 August 2014 and two of 22 August 2014. The first defendant relied upon the affidavits of Alexander Whistler Street, sworn 18 July 2014 and 25 August 2014. All the parties were legally represented. The second defendant did not rely upon any affidavit evidence but gave short oral evidence. I shall refer to this evidence later in this judgment. 4There are two issues to be determined. The first is whether the balance of these proceedings should be cross-vested to the Family Court and the second is whether the garnishee order should be varied. I shall deal with each issue in turn.
Background 5All parties to these proceedings are related. The plaintiff (Helen Jenifer McDonald, formerly Helen Jenifer McAskill) ("Helen McDonald") is Sally Street's mother. The first defendant (Alexander Whistler Street) ("Sandy Street") and the second defendant (Sally Danielle Eve Street) ("Sally Street") are separated. 6The plaintiff in these proceedings is the second respondent in the Family Court proceedings, while the first defendant is the plaintiff and the second defendant is the first respondent in the Family Court proceedings. For convenience, and without intending any disrespect, I shall refer to the parties by name. 7Helen McDonald claims she lent money to the defendants over a number of years during their marriage. She seeks a repayment of the debts. Sandy Street has admitted to owing some of the debts, but disputes the amount claimed for interest.
The pleading framework 8I shall refer to the relief sought in the statement of claim. It is pleaded as follows: (1) The unpaid moneys, totalling a liquidated sum of $836,989.39; (2) Further and in the alternative, a declaration that interest at the rate of 4.29% has accrued on all the monies lent to the defendants (or such other sum the court considers appropriate) since each amount was advanced to them or since other dates the Court deems appropriate; (3) Further and in the alternative, a declaration that unpaid interest on the monies capitalises and forms part of the debt upon which interest accrues; (4) Further and in the alternative, interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW); (5) Further and in the alternative, that the monies loaned by Ms McDonald were in whole or in part repayable to her solely by Mr Street and without recourse to contribution by Ms Street; (6) Further and in the alternative, a declaration that Ms Street has an equitable charge or lien over the current and future personal and real property of Mr Street; (7) Further and in the alternative, orders pursuant to ss 7(1)(c) and 15 of the Contracts Review Act 1980 (NSW) varying the loan agreement signed by the defendants and dated 27 April 2006; (8) Further in the alternative that each of the loan agreements or arrangements had effect from such time as the Court considers appropriate and that: interest at the rate of 4.29% accrues on all the monies lent; interest on the monies loaned by Ms McDonald capitalises and forms part of the debt upon which interest then accrues; that Mr Street grants to Ms McDonald an equitable charge or lien over all of his current and future personal and real property; and that Mr Street not further encumber any current or future property without first obtaining the written consent of Ms McDonald and informing the prospective lender of the debts owing to Ms McDonald, as well as her security interests; (9) Further and in the alternative, an order for payment of compensation (or otherwise) by one or both of the defendants to Ms McDonald, pursuant to ss 7and 8 of the Contracts Review Act; (10) Further and in the alternative, an order pursuant to ss 7 and 8 of the Contracts Review Act creating an equitable charge or lien in favour of Ms McDonald over the current and future personal and real property of Mr Street; (11) Further and in the alternative, damages at common law for negligence; (12) Further and in the alternative, an order for equitable compensation or an account of profits; (13) Further and in the alternative, a Sanderson or Bullock costs order that Mr Street pay Ms Street's costs of these proceedings. 9For convenience, I shall refer to "unpaid moneys" totalling a liquidated sum of $836,989.39 as "the debts".
The defence 10In summary, Sandy Street's defence filed 8 May 2014 concedes that Helen McDonald lent the defendants the sum of $533,000 on or about 30 December 2005 (Defence [16]). He pleads that the defendants attempted to give Helen McDonald a cheque for $650,000 in or about November 2007 to repay the principal of all that had been lent by Helen McDonald, but that she told the defendants to keep the money on an interest free basis and that it would be implied that the monies would be repayable on demand (Defence [22]). The defence also pleads that Helen McDonald obtained legal advice from a solicitor not to lend the defendants any more moneys and that the plaintiff, aware of that advice and her financial position, continued to lend sums of money to the defendants on an interest free basis (Defence [39]). In relation to the claim of unconscionability and breach of fiduciary duty, he pleads that he was asked to prepare Helen McDonald's will that contained benefits for both of the defendants, and that he invited her to obtain independent legal advice, which she did not take up (Defence [40]).
The notice of motion for summary judgment 11By notice of motion filed 19 May 2014, Helen McDonald sought summary judgment against Sandy Street. On 28 May 2014, summary judgment was entered in favour of Helen McDonald for a partial sum of $540,792.92. Sandy Street neither consented to nor opposed this order being made.
(a) Cross-vesting to the Family Court 12The first issue is whether these proceedings should be transferred to the Family Court pursuant to section 5(1)(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("Cross-Vesting Act"). Sandy Street seeks that the balance of these proceedings be transferred to the Family Court. Sally Street does not oppose this order. Helen McDonald strongly opposes this order being made.
Cross-vesting generally 13Counsel for Helen McDonald submitted that the wording of s 5(1)(b) of the Cross-Vesting Act means Sandy Street must satisfy the Court that: "i. there is a proceeding in this Court to transfer; ii. that there are proceedings in the Family Court pending to which these proceedings arise out of or are related to; and iii. that it is more appropriate that [these proceedings] be determined by... the Family Court." 14Helen McDonald says that it would be open to this Court to determine whether the debts exist and then the Family Court will make a separate determination about whether those debts can be adjusted under s 90AE of the Family Law Act 1975 (Cth). 15Sections 5 and 8(1)(b) of the Cross-Vesting Act read: "5 Transfer of proceedings (1) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding ) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court ); and (b) it appears to the first court that: ... (ii) having regard to: (A) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Federal Court or the Family Court; (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction; and (C) the interests of justice; it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be; or (iii) ... the first court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be. ... (9) Nothing in this section confers on a court jurisdiction that the court would not otherwise have. ... 8 Orders by Supreme Court (1) Where: ... (b) it appears to the Supreme Court of that Territory that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court, the Family Court, the Supreme Court of a State or the Supreme Court of another Territory and, if an order is made under this subsection in relation to the relevant proceeding, there would be grounds on which that other proceeding could be transferred to the Supreme Court of that first-mentioned Territory; or (ii) an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court; the Supreme Court of that first-mentioned Territory may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to that Supreme Court. " 16The starting point in relation to cross-vesting is Bankinvest AG v Seabrook (1988) 14 NSWLR 711, where Street CJ at [713] to [714] stated: "The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice. ... It calls for what I might describe as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute." 17In BHP Billiton Ltd v Schultz [2004] HCA 61, 221 CLR 400, Gleeson CJ, (with whom McHugh and Heydon JJ agreed) said in relation to the "interests of justice" requirement: "[14] In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate. [15] ...The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality." 18Brereton J conveniently summarises the High Court's consideration in Schultz of the interests of justice when his Honour stated in Valceski (at [69]) "As Schultz makes clear, the interests of justice concern those of both parties, and rather than the selection of the most advantageous, or least disadvantageous, forum for one of them, the "interests of justice" are to be judged by more objective factors, such as facilitate identification of the "natural forum", in which objectively judged it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party, whatever they may be [cf British American Tobacco v Gordon, [47]]." 19All parties agree that the particular debt of $540,972.92 has merged by passing into judgment and "has no longer an independent existence" (see Blair v Curran [1939] HCA 23; 62 CLR 464 at 531-532). Accordingly, only the balance of the claim can be the subject of further litigation. It was also conceded by the parties that proceedings could be transferred in a cross-vesting claim but not the judgment.
Consideration of Valceski 20All parties referred to Valceski v Valceski [2007] NSWSC 440; 70 NSWLR 36. Valceski is instructive as it involves the transfer of proceedings from this Court to the Family Court. 21The brief facts in Valceski are that the defendants Boban Valceski ("Bobby") and Beti Valceski ("Betty") were estranged husband and wife, with Betty instituting proceedings between them in the Family Court seeking parenting orders and financial adjustment. Their property, the subject of those proceedings, included their former matrimonial home. Bobby had been the sole registered proprietor, as a result of a transfer pursuant to a deed between his father Micko Valceski ("Mick"), Bobby and Betty. Under the deed Mick agreed to transfer to Bobby all Mick's right, title and interest in the matrimonial home, in consideration of which Betty agreed that she would continue to acknowledge the contributions made to the home by Mick and would treat Bobby as beneficially owning only a just and equitable share of the home proportionate to his actual contributions. In the equity suit brought in the Supreme Court, Mick sought to set aside the deed and transfer on the grounds of non est factum, misrepresentation, mistake, unconscionability, undue influence and the Contracts Review Act. Betty sought an order that the equity suit be transferred to the Family Court of Australia, to be consolidated with the matrimonial proceedings between her and Bobby. 22In Valceski Brereton J outlined the considerations specified in s 5(1)(b)(ii) of the Cross-Vesting Act as: "[19] Accordingly, in an application for transfer of proceedings from the Supreme Court to the Family Court, s 5(1)(b)(ii) specifies three relevant considerations, namely: · Whether (but for cross-vesting and accrued jurisdiction) the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Family Court; · The extent to which the matters for determination in the relevant proceeding arise under a law of the Commonwealth and are not otherwise within the jurisdiction of the Supreme Court; · The interests of justice." 23In relation to the accrued jurisdiction of the Family Court, Brereton J in Valceski stated: "[36] However, s 78 does not of itself confer jurisdiction to declare void the February 2004 deed and transfer void, or to set them aside, or to compel a retransfer to Mick, at general law or under the Contracts Review Act. Such relief could be granted by the Family Court only if state jurisdiction accrues to it in the circumstances of this case. [59] Accordingly, the Family Court has accrued jurisdiction, just as does the Federal Court and the High Court, to determine the whole of a justiciable controversy, even though some aspects of it may involve State and not federal law. So long as the controversy arises under the Family Law Act, it need not be limited to it. Once seized of jurisdiction in respect of a matter arising under the Family Law Act - pursuant to Family Law Act s 31(1)(a) - the jurisdiction of the Court extends to the whole of the matter, that is to say, the justiciable controversy, even though its determination requires the application of State law. While there may be a discretion to decline to exercise accrued jurisdiction, it will be an exceptional case in which that discretion can properly be exercised so that the whole of a justiciable controversy is not resolved in the one court." 24In Valceski, Brereton J continued at [60] - [69]: "There is accrued jurisdiction in this case [60] The equity suit and the matrimonial proceedings share a common substratum of facts, notwithstanding that the underlying facts of each do not wholly coincide - in that while the matrimonial proceedings involve wider and additional issues, the facts that underlie the equity suit are a subset of those that underlie the matrimonial proceedings. The issues of the validity of the February 2004 deed and transfer, and the beneficial interests in McArthur Parade as between Bobby on the one hand and Mick (and possibly Angelina) on the other, are common to both proceedings. Those issues would arise in the s 79 proceedings even if they were not directly raised by order 3 sought in the Wife's Amended Application: their resolution is an essential step in the first stage of the s 79 exercise. C & C, Wade-Ferrell, Warby and Bishop show that where it is necessary in the exercise of its s 79 jurisdiction for the Family Court to decide whether property is that of a party to the marriage or of a third party, the Court may in its accrued jurisdiction determine that issue so as to bind that third party. In this case the position is all the stronger, because Betty's claim in the matrimonial proceedings for a declaration under s 78 is the mirror image of the relief claimed by Mick and Angelina in the equity suit. It is obvious on the face of the declaration sought in par 3 of her Amended Application that it is the antithesis of what Mick and Angelina seek in the Supreme Court. Betty's s 78 claim in the Family Court shares an identical substratum with Mick and Angelina's claim in the equity suit. ... [64] In Warby, the Full Family Court said: 93. In the present case there is a single property that is central to the parties' controversy. The Family Court cannot determine and settle the property of the parties without determining the relative beneficial interests of the parties to the marriage and the wife's father in the property. It is not to the point that a State court could make orders as to the dispute between the parties to the marriage and the wife's father, and that the Family Court of Australia could then determine the Family Law dispute between the parties to the marriage. It is enough to say that even taking the narrow view of accrued jurisdiction represented by Wilson J's judgment in Phillip Morris, in this case "the federal question could not be resolved without the determination of the non federal question". The Family Court of Australia must ascertain as a first step the property pool of the parties available for distribution. [65] That statement is equally apposite here. The claim in the equity suit forms part of the justiciable controversy in respect of which the matrimonial proceedings have been brought. Accordingly, there is but one justiciable controversy; and the Family Court has accrued jurisdiction in respect of so much of that controversy as does not fall within its ordinary jurisdiction. ... [69] ... The question is simply whether, assuming that the jurisdiction of the transferor court has been regularly invoked, it is in the interests of justice that the proceedings be heard and determined in the transferee court, there being a statutory obligation to transfer the proceedings to that court whenever it appears to be in the interests of justice to do so - for which purpose it is both necessary and sufficient that the transferee court be the 'more appropriate' forum: ..." 25Brereton J, in Valceski, also discussed the intervention of third parties in marriage disputes. At [77] and [85] his Honour stated: "[77] ... That is not to suggest that they are not entitled to do so, but where strangers to a marriage use the occasion of its demise to assert a right against the property of one or other (or both) of the spouses, they cannot reasonably complain if they become entwined in the matrimonial dispute. Third parties who intervene in matrimonial disputes in this way - especially associates, such as parents and private companies, of one or other of the spouses - cannot complain if their dispute is treated as part of the larger matrimonial dispute which it normally is. Where third parties who assert rights against matrimonial property do so concurrently with pending matrimonial property proceedings, it will ordinarily be appropriate for those issues to be resolved in the matrimonial proceedings, and for the third party to join in those proceedings for that purpose, rather than to commence separate litigation, in another court, which almost inevitably results in duplication of evidence, issues, time and costs. ... [85] ... If as a matter of principle the effect of this decision is that third parties who, in the context of a marriage breakdown, assert rights against matrimonial property, should join in existing matrimonial proceedings rather than commence separate litigation, then the beneficial result is that all issues are litigated only once and only in one court, the risks and costs of duplication and inconsistency are avoided, and forum-shopping and collateral litigation is discouraged. Third parties - especially associates, such as parents or children or private companies, of one or other of the spouses - who use the occasion of the demise of a marriage to assert a right against the property of one or other (or both) of them, cannot reasonably complain if their claim is treated as part of the larger matrimonial dispute in the context of which it arises." 26Recently, in Manson v Della-Bosca [2014] NSWSC 1232 at [24] Campbell J referred to his earlier decision in Jackson v Mylan (2012) 263 FLR 148 at 156 [34] where he helpfully distilled the considerations set out in Valceski. His Honour's summary is as follows: "I draw the following considerations from Brereton J's analysis. I have omitted his Honour's citations: (a) When a Federal law confers jurisdiction on a court in respect of a matter, the jurisdiction extends to authorise the determination of the whole matter; (b) A matter is a "justiciable controversy" which may involve the determination of both Federal and State law, once federal jurisdiction is attracted, a federal court is armed with full authority essential for the complete adjudication of the "matter" and not merely the federal aspect of it. This is the origin of "accrued jurisdiction"; (c) The authority to determine non-federal aspects of a justiciable controversy requires that "non-federal aspects" of the controversy form an integral part of it; the last requirement will be satisfied where the different claims, federal and non-federal arise out of "common transactions and facts" or a "common substratum of facts" notwithstanding that the facts upon which the claims depend "do not wholly coincide"; (d) An important consideration is whether different claims are so related that the determination of one is essential to the determination of the other; (e) Likewise where if the proceedings were tried in different courts there could be conflicting findings made on one or more issues common to the two proceedings; (f) The jurisdiction of the Federal Court extends beyond the determination of the federal claim to the litigious or justiciable controversy between the parties, of which the federal claim or cause action forms a part." 27As to whether these proceedings should be cross-vested, Sandy Street argued that the issues in dispute in this Court have arisen out of the matrimonial relationship and that this subject matter is to be dealt with by the Family Court under section 90AE of the Family Law Act 1975 (Cth). 28Sally Street did not oppose the transfer of the proceedings to the Family Court. She submitted that in light of the observations of Brereton J in Valceski, it is "inevitable" that the proceedings be transferred. She submitted that the s 90AE application has the consequence that these proceedings ought be transferred to the Family Court. This is because it would seem that justice would be best done by one Court to resolve the whole justiciable controversy and to avoid duplication and inconsistency. 29Counsel for Helen McDonald submitted firstly, that this Court has no power to transfer the judgment to the Family Court as the judgment is an order of this Court, not a proceeding; secondly, there is no accrued jurisdiction; thirdly, that this Court is the more appropriate Court; and finally, that this Court should determine the debt issue and then cross-vest the proceedings. The first issue is a preliminary one, so I will refer to it at the outset.
Is there a proceeding? 30The preliminary issue is whether there is a proceeding for this Court to transfer. The word "proceeding" is defined in s 3 of the Cross-Vesting Act as "not including a criminal proceeding". In the proceedings in this Court a judgment has been entered against Sandy Street. Section 3 of the Cross-Vesting Act defines 'judgment' as meaning a "judgment, decree or order, whether final or interlocutory". However, as will be seen below, each of the parties concede that there are issues still in dispute before this Court that have yet to be decided. This means that the proceedings are still on foot. There is a proceeding to transfer. 31The remaining issues are firstly, whether proceedings would have been incapable of being instituted in this Court and capable of being instituted in the Family Court; secondly, the extent to which the matters for determination in the relevant proceeding arise under a law of the Commonwealth and are not otherwise within the jurisdiction of the Supreme Court; and finally, the interests of justice. I shall deal with each issue in turn.
(1) Whether proceedings would have been incapable of being instituted in this Court and capable of being instituted in the Family Court 32On 14 July 2014, Sandy Street commenced the Family Law proceedings. Sally Street is the first respondent and Helen McDonald is the second respondent. 33The initiating application filed in the Family Court seeks an order pursuant to s 90AE of the Family Law Act 1975 (Cth) that the debt be declared a joint matrimonial liability with Sally Street and as such, that they are each equally liable to Helen McDonald for half of the debt. Sandy Street also seeks an order restraining Helen McDonald from enforcing the debt in the Supreme Court proceedings on the condition that he continues to pay her rent, electricity and phone bills and on the condition that he pursue the Family Law proceedings with all reasonable diligence. He also seeks an order restraining Helen McDonald from continuing to litigate the disputed issue of interest, pending determination of the Family Law proceedings and/or the determination of the cross-vesting dispute currently before this Court. 34It is convenient that I now briefly refer to the relevant provisions of the Family Law Act 1975 (Cth). 35Section 90AE of the Family Law Act reads: "90AE Court may make an order under section 79 binding a third party (1) In proceedings under section 79, the court may make any of the following orders: (a) an order directed to a creditor of the parties to the marriage to substitute one party for both parties in relation to the debt owed to the creditor; (b) an order directed to a creditor of one party to a marriage to substitute the other party, or both parties, to the marriage for that party in relation to the debt owed to the creditor; (c) an order directed to a creditor of the parties to the marriage that the parties be liable for a different proportion of the debt owed to the creditor than the proportion the parties are liable to before the order is made; (d) an order directed to a director of a company or to a company to register a transfer of shares from one party to the marriage to the other party. (2) In proceedings under section 79, the court may make any other order that: (a) directs a third party to do a thing in relation to the property of a party to the marriage; or (b) alters the rights, liabilities or property interests of a third party in relation to the marriage. (3) The court may only make an order under subsection (1) or (2) if: (a) the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and (b) if the order concerns a debt of a party to the marriage - it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and (c) the third party has been accorded procedural fairness in relation to the making of the order; and (d) the court is satisfied that, in all the circumstances, it is just and equitable to make the order; and (e) the court is satisfied that the order takes into account the matters mentioned in subsection (4). (4) The matters are as follows: (a) the taxation effect (if any) of the order on the parties to the marriage; (b) the taxation effect (if any) of the order on the third party; (c) the social security effect (if any) of the order on the parties to the marriage; (d) the third party's administrative costs in relation to the order; (e) if the order concerns a debt of a party to the marriage - the capacity of a party to the marriage to repay the debt after the order is made; (f) the economic, legal or other capacity of the third party to comply with the order; (g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters - those matters; (h) any other matter that the court considers relevant." 36And s 79 reads: "79 Alteration of property interests (1) In property settlement proceedings, the court may make such order as it considers appropriate: (a) in the case of proceedings with respect to the property of the parties to the marriage or either of them - altering the interests of the parties to the marriage in the property; or (b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage - altering the interests of the bankruptcy trustee in the vested bankruptcy property; including: (c) an order for a settlement of property in substitution or any interest in the property; and (d) an order requiring: (i) either or both of the parties to the marriage; or (ii) the relevant bankruptcy trustee (if any); to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines. (1A) An order made under subsection (1) in property settlement proceedings may, after the death of a party to the marriage, be enforced on behalf of, or against, as the case may be, the estate of the deceased party..." 37It is fair to say that all the parties in these proceedings are parties involved in proceedings before the Family Court. Subsections 90AE(2), (3) and (4)(g) of the Family Law Act contemplate the involvement of third parties, such as Helen McDonald. An issue to be resolved in the Family Court is the loans made by Helen McDonald to Sandy Street and Sally Street. The same loans are the subject of the proceedings in this Court. 38I would summarise the relief sought in the proceedings in this Court as first, the loan, interest and costs [1] to [4] and [8] and [12] second the liability of Ms Street for the loan [5] and [6], and finally, the balance of the pleading raises the Contracts Review Act [7] to [9], damages for negligence [10] and equitable compensation [11]. 39The solicitor acting for Sandy Street categorises the sole remaining issue outstanding in these proceedings is the remaining debt and interest. Counsel for Helen McDonald disagrees with this classification. He categorises them as being: (1) Whether there is interest payable on the loans the subject of the judgment giving rise to a further debt against Sandy Street and/or Sally Street; (2) Whether Sally Street is liable for the loans or whether on the proper construction of the loan agreement dated 27 April 2006 the parties agreed that Sandy Street has been solely responsible to repay the loans since the sale of the property in Vaucluse; (3) Whether Helen McDonald has a charge over the personal property of Sandy Street on the proper interpretation of the loan agreement; (4) Whether Sandy Street was retained as a barrister to prepare and advise on Helen McDonald's will dated 2 May 2006, and whether he breached the fiduciary duty owed under that retainer or acted negligently for matters, including failing to advise Helen McDonald that the loan agreement was inadequate in material respects to record the loan terms and failing to advise Helen McDonald that she needed to register the charge in the loan agreement to protect her interests; and (5) Whether the first and/or second defendants have obtained the loans from Helen McDonald by way of unconscionable conduct under the Contracts Review Act 1980 (NSW) or in equity and whether a charge should be imputed over the present and future assets of Sandy Street. 40Even on Helen McDonald's summation (1) to (4) all relate to the loan and involve the same facts and circumstances. 41Sandy Street submitted that the substratum of facts in the proceedings before this Court apply to each alleged cause of action in the Family Court, because each cause of action is linked to and dependent upon the alleged loans. Furthermore, the alleged damages and compensation are equally derivative of the alleged loans. He submitted that the allocation of liability of those loans is at the heart of the ss 79 and 90AE application and that accordingly, there is only one controversy and to have two courts hearing the same controversy is contrary to the interests of justice. 42I agree that the proceedings between the parties instituted in the Family Court pursuant to s 90AE of the Family Law Act deal with the same facts and issues as the proceedings in this Court. The issue of the repayment of the loans involves the same facts and circumstances. The proceedings could have been instituted in the Family Court.
(2) The extent to which the matters for determination in the relevant proceeding arise under a law of the Commonwealth and are not otherwise within the jurisdiction of the Supreme Court; 43Helen McDonald submitted that her specific claims in respect of breach of fiduciary duty, negligence and unconscionable conduct are matters that the Family Court can only determine under its accrued jurisdiction but it is unclear as to whether the Family Court has accrued jurisdiction to deal with those matters and hence the proceedings should not be transferred.
Accrued jurisdiction 44Counsel for Helen McDonald sought to distinguish Valceski on the basis Brereton J made it clear that the Family Court certainly had accrued jurisdiction to hear that property matter while in this case it was not certain whether the Family Court has accrued jurisdiction. To distinguish Valceski counsel referred the Court to the decisions of Noll v Noll [2013] FamCAFC 24; 274 FLR 422 ("Noll"); Wentworth v Hamilton [2014] FamCA 533 ("Wentworth") and Jane v Jane [2008] VSC 341 ("Jane"). 45In Noll the Full Court of the Family Court considered whether the Family Court had accrued jurisdiction to join a claim against solicitors for negligence, unconscionable conduct and other associated claims. The Court considered that to enliven the accrued jurisdiction, the claims needed to be so related to one another that the determination of one is essential to the determination of the other. The Court said that if the facts upon which the claims depend do not wholly coincide, there could still be a sufficiently common substratum of facts to attract the accrued jurisdiction. For this to occur, it is necessary to identify one justiciable controversy or matter. The Full Family Court concluded that it did not have accrued jurisdiction to determine the claim against the third party solicitors and declined the joinder. 46Referring to Noll, Helen McDonald submitted that in relation to the breach of fiduciary duty, negligence, unconscionable conduct and Contracts Review Act claims, it is unclear if the Family Court would choose to exercise accrued jurisdiction to determine those claims. It was emphasised that in Noll it was held that just because certain facts are similar and there are similar parties, it doesn't mean that accrued jurisdiction arises. 47Wentworth is a decision where the Family Court decided that a claim in negligence did not form part of the justiciable issue between the parties that was to be decided by the Court. Helen McDonald submitted that in light of what was said in Wentworth the negligence claim is severable because it could have been brought in separate proceedings. 48In Jane, Bob Jane and his then wife Laree were involved in Family Court proceedings in relation to their three children of the marriage and an adjustment of property. Their son, Rodney, commenced proceedings in the Supreme Court of South Australia seeking declarations that units owned in a Bob Jane Unit Trust were held for him. 49In Jane, Justice Hansen concluded it was in the interests of justice that the proceedings remain in the Supreme Court. His Honour considered the factors in s 5(1)(b)(ii) of the Cross-Vesting Act and concluded [at 23] that there was no substantial duplication of proceedings, that Rodney's proceedings were a limited enquiry, and that there was a low likelihood of inconsistent findings to be made between the two courts. 50Noll, Wentworth and Jane are distinguishable from the present set of facts before this Court because the proceedings to be transferred in those matters each dealt with a discrete point not sufficiently connected to the Family Court proceedings. In Jane the discrete issue was dealing with the efficacy of a declaration. In Noll there was not a sufficient substratum of facts linking the solicitor's claim to the Family Court proceedings, while in Wentworth the negligence claim did not form part of the justiciable issue that was before the Family Court. 51In contrast, the present case deals with Helen McDonald who was intimately involved in the loans as the lender, and all of the loans form the substratum of the facts, which are the subject of the Family Law proceedings. Furthermore, Helen McDonald also submitted that in applying the principles of res judicata, by leaving these proceedings in the Supreme Court, this Court could simply take note of any findings made in the Family Court if such findings were to arise before a final decision was made by the Supreme Court. In response, Sandy Street argued that this point simply highlights the inappropriateness of two courts dealing with the same matters for determination surrounding the same facts. 52Sandy Street submitted that the Family Court clearly has jurisdiction to deal with the matter. He referred to the s 90AE application and what must be considered as part of that application, including age, state of health, child of the marriage, commitments of the parties and that it ties in with s 79, which deals with alteration of property interests. Sandy Street further submitted that what is in dispute is whether there was an agreement for interest between Helen McDonald and himself and that the issue of accrued jurisdiction would only arise if there is a difficulty in Ms McDonald recovering the interest in contest. He submitted that the substratum of facts in both the Family Court and Supreme Court proceedings are virtually identical and that the loans and the terms of the loans are central to those issues. 53Sandy Street has argued that unless orders are made pursuant to ss 78, 79 and 90AE of the Family Law Act, Helen McDonald will never pursue Sally Street and Sally Street will never make any contribution to the extent of joint liability and that is the key issue in the matrimonial property dispute in the Family Court proceedings. In response, counsel for Helen McDonald submitted that Sandy Street could always file a cross-claim against Sally Street in the Supreme Court proceedings. 54Valceski decided that the Family Court can deal with matters of non est factum, interest, unconscionability and the Contracts Review Act, these being other additional matters in dispute raised by Ms McDonald. As Brereton J stated (at [59]): "Even though some aspects of it may involve State and not federal law. So long as the controversy arises under the Family Law Act, it need not be limited to it. Once seized of jurisdiction in respect of a matter arising under the Family Law Act - pursuant to Family Law Act s 31(1)(a) - the jurisdiction of the Court extends to the whole of the matter, that is to say, the justiciable controversy, even though its determination requires the application of State law. While there may be a discretion to decline to exercise accrued jurisdiction, it will be an exceptional case in which that discretion can properly be exercised so that the whole of a justiciable controversy is not resolved in the one court." 55It is my view that the issues to be dealt with under s 90AE in the Family Court deal substantially with the issues associated with Ms McDonald's claim in this Court. Section 90AE empowers the Family Court to direct a third party to do a thing in relation to the property of a party to the marriage (subsection 90AE(2)(a)), or alter the rights, liabilities or property interests of a third party in relation to the marriage (subsection 90AE(2)(b)). The loans between Helen McDonald and Sandy Street and Sally Street arose out of the marriage and it is these loans that are pivotal to the matter that Sandy Street has raised in the family law proceedings. 56The primary issue in the Family Court is the resolution of the matrimonial property liability of the defendants as between themselves in relation to the repayment of the loans from Helen McDonald. This issue can be heard and determined in the matrimonial property proceedings currently before the Family Court. The controversy clearly arises under the Family Law Act and thus the substantial part of these proceedings arises under federal law. 57It is my view that the Family Court is a more appropriate forum. However, it depends on where the interests of justice lie.
(3) Interests of justice 58Helen McDonald submitted that ss 56(2) and 58 of the Civil Procedure Act 2005 (NSW) require the Court to consider the dictates of justice in exercising its discretion. She submitted that regard must be had to the just, quick and cheap resolution of the proceedings and the degree of injustice suffered by the parties from any order made by this Court. I agree with this submission. 59As Schultz explains "the interests of justice concern those of both parties, and rather than the selection of the most advantageous, or least disadvantageous, forum for one of them, the "interests of justice" are to be judged by more objective factors, such as facilitate identification of the "natural forum", in which objectively judged it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party, whatever they may be [cf British American Tobacco v Gordon, [47]].": Valceski at [69] per Brereton J. 60Without transferring these proceedings there is the potential likelihood of a duplication of costs with two courts dealing with what is essentially the same issue, the liability for repayment of the debts. If the debts issue is litigated in two separate courts there is potential for delays to occur in both sets of proceedings, with one court awaiting a decision of the other court. There is potential for conflicting factual findings between two courts. The cost of litigating proceedings in two different courts increases the legal costs of all parties. The Family Court can determine all the matters in dispute efficiently and expeditiously. It is my view that in the interests of justice, the Family Court is more appropriate. 61After taking all these matters into account, it is my view that the more appropriate forum is the Family Court. 62The balance of these proceedings are transferred to the Family Court of Australia, Sydney Registry pursuant to s 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth). 63I turn now to consider the second issue, namely whether the terms of the garnishee order should be varied.
(B) Variation of garnishee order 64On 1 July 2014, garnishee orders were issued and directed to Atticus Busby t/as Mackellars Lawyers; the National Australia Bank; Westpac Banking Corporation; Robert Wilson, Mark William Mackrell, Benjamin Geoffrey Martin t/as Norton White; and Brenden John Miller, Ian John Benecke and Stephen Edward Martin t/as Garland Hawthorn Brahe. 65It is common ground that the Supreme Court has an inherent jurisdiction to set aside a garnishee order where enforcement of the garnishee order would cause an injustice. The categories as to what constitutes an injustice are not closed. In support of this proposition counsel for Helen McDonald referred to James Bibby LD v Woods and Howard [1949] 2 KB 449, Pritchard v Westminster Bank Ltd [1969] 1 All ER 999 and ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859; (2007) 69 NSWLR 577. 66These cases establish that the general position is that a creditor is entitled to the fruits of their judgment and where there are multiple creditors the first to levy execution is entitled to payment. 67In Bibby, Lord Goddard CJ at 455 stated: "Garnishee proceedings are one form of execution and, as I have said more than once in the course of the argument, it not infrequently happens that, where there are several claims, or may be several claims, against money, the person who gets in first gets the fruits of his diligence." 68In Pritchard, Lord Denning MR (with whom Edmund Davies LJH and Phillimore LJ agreed) stated (at 1000-1001): "The general principle, when there is no insolvency, is that the person who gets in first gets the fruits of his diligence: see per Lord Goddard CJ, in James Bibby, Ltd v Woods (Howard, Garnishee) [1949] 2 All ER 1 at p 4; [1949] 2 KB 449 at p 455.). But it is different when the estate is insolvent. Under the Administration of Estates Act 1925, s 34(1), and Sch 1, Pt 1, it is quite plain that, when an estate is insolvent, the bankruptcy rules apply. This brings in s 33 of the Bankruptcy Act 1914." 69In ML Ubase, Brereton J referred to Pritchard and had this to say (595 [56]): "[56] The making of a garnishee order absolute is discretionary, and the Court will not do so where the effect would be to confer a preference on a creditor, such as where a winding up order had been made or a petition presented. In Pritchard v Westminster Bank Ltd [1969] 1 WLR 547; [1969] 1 All ER 999, Lord Denning MR, with whom Edmund Davies LJ and Phillimore LJ agreed, set aside a garnishee order attaching a debt and compelling immediate payment to the plaintiff, in circumstances that would prefer the plaintiff over all other creditors. His Lordship said (at 549; 1001): 'The court will not allow one creditor, however diligent he may be, to get an advantage over the others by getting in first with a garnishee order. There is an authority which seems to me to be conclusive on the point. It is Kennett v Westminster Improvement Commissioners (1855) 11 Exch 349. In that case there were bondholders who were, by agreement, to be paid pari passu by Westminster Improvement Commissioners. The court held that one creditor could not get an advantage by coming in with a garnishee order before the others. Platt B said at p 354: '... the court are of opinion that this is not such a debt as ought to have been attached, because the attaching it and compelling immediate payment would give a preference to the debt due to this particular bond holder over all the others, which is in direct violation of the agreement'. So here the attaching of this debt and compelling immediate payment to [the plaintiff] would give a preference to him over all other creditors, which is in direct violation of the statute. The overriding rule is that all creditors should be treated equally. This garnishee order ought not to be made absolute'." 70I accept that under ordinary circumstances, Helen McDonald, who has got in first, should receive the fruits of her diligence. But as previously stated, the terms of the garnishee order, can be varied where its enforcement causes an injustice. 71Once again, the parties also referred to ss 56(2) and 58 of the Civil Procedure Act 2005 (NSW). The Court is to consider the dictates of justice in exercising a power or discretion. Counsel for Helen McDonald submitted that in the present case the relevant dictates are the just, quick and cheap resolution of the proceedings and the degree of injustice suffered by the parties from any order. I will also take these matters into account.
The garnishee orders 72There have been two garnishee orders made by this Court. One dated 22 July 2014, the other on 27 August 2014. I have included these orders as it makes it easier to explain the variation to the garnishee order that Sandy Street seeks to have made. 73On 22 July 2014, Hamill J made the following interim orders in relation to the garnishee order which expired on midnight, 27 August 2014. The Court orders are: "(4) Sandy Street to pay or cause to be paid any income he receives into the trust account of Wood Marshall Williams within two working days after the income is received. (5) The funds accumulated in the trust account of Wood Marshall Williams be dispersed as follows; (a) 50% to be paid to Sandy Street or at his direction solely for the purposes of meeting any existing or accumulating tax liability of Sandy Street; (b) that at the direction of Neale Stuart Marshall a sum be set aside to meet the existing and accumulating obligation of Sandy Street to pay maintenance for his daughter [name deleted] and that it be disbursed to the Child Support Department of Human Services or at its direction. There is to be no publication of her name; (c) that the balance (i) 70% be paid to Helen McDonald; and (ii) 30% to be paid to Sandy Street." [My emphasis added] ... (7) I note an undertaking by the first defendant to the chambers (including his shareholding in 7 Wentworth North Pty Ltd); and further note an agreement between the plaintiff and the first defendant that the proceeds of sale of those chambers will be deposited into an account under the control of Neale Stuart Marshall until distribution of those funds is determined by an order of this Court or the Family Court. 74Since the orders made by Hamill J were due to expire at midnight on the day of this hearing, namely 27 August 2014, I made the following interim orders:
(i) Helen McDonald's financial position 80The plaintiff did not give direct evidence. Rather her solicitor, Mr Marshall, deposed as to the financial position of Helen McDonald. For the purposes of this application, I accept his evidence. 81In 2005 Helen McDonald retired and sold her home. Currently, she does not own any real property. She has no assets of any substance. Her only source of income is a Centrelink payment. 82Helen McDonald rents her current residence on a month-to-month tenancy. Up until the interim garnishee order was made, her rent and utility expenses were being paid by Sandy Street. The debt that is the subject of these proceedings constituted the majority of her savings. Her solicitor deposes that if the loan is not repaid in full she will not have sufficient funds to purchase a home to live in. 83Currently her solicitors are holding $20,534.56 in accordance with the orders of Hamill J made on 22 July 2014 of which approximately $10,000 has been retained by the solicitors on account of legal fees. For the period 22 July 2014 to 25 August 2014, under the garnishee regime ordered by Hamill J, a period of approximately five weeks, she has received the sum of $20,534.56. This equates to about $4,107 per week. I accept that if the terms of the garnishee order are to be altered, Helen McDonald will receive a lesser sum.
Sandy Street's financial position 84Sandy Street receives his income from working as a barrister. He has recently suffered a serious illness. 85He has considerable debts owed to the Australian Tax Office, his super fund, as well as money owed on numerous bank credit cards. He has no savings in any bank account nor does he own any shares. He has a car which is also subject to debt. He does not own any real estate. He is currently living with his mother. He has borrowed money from her in order to live. 86It is apparent from a careful examination of his income and debts as set out in his affidavits and living circumstances that the vast majority of his income is being directed towards paying his creditors, including Helen McDonald, as well as supporting his wife Sally Street. Sandy Street pays $1,300 a month in child support. 87Counsel for Helen McDonald referred to Sandy Street's affidavit dated 25 August 2014, and submitted that it has left some gaps. The Court's attention was drawn to payments of $3,000 and $8,000 on different credit cards, $3,000 for personal living, $4,400 on one of his son's engagement party and $25,000 for purchasing a second hand 2013 Lexus 4-wheel drive [T47.28-42]. 88During the hearing, counsel for Helen McDonald was submitted that Sandy Street did not include in his affidavit an arrangement to sell the chambers at Seven Wentworth North for $50,000. He makes no mention that Seven Wentworth North scheduled a chambers meeting on 28 August 2014 to consider whether to pass a resolution for the sale [T48.13, 39; T49.24, 33]. This submission is surprising and unwarranted given, firstly, that on 27 July 2014 (prior to the affidavit of 25 August 2014) Sandy Street SC gave an undertaking to this Court that he will take immediate measures to sell his chambers (including his shareholding in Seven Wentworth North Pty Ltd) and, secondly, the agreement between Helen McDonald and Sandy Street that the proceeds of the sale of those chambers would be deposited into an account until distribution of those funds is determined by an order of this Court or the Family Court. In any event, ultimately, 50% of the proceeds of the sale of those chambers will be paid to Helen McDonald. As a consequence, $25,000 will be distributed to Helen McDonald and Sandy Street will also receive the sum of $25,000. 89I am satisfied that Sandy Street is making his best efforts support his wife and child, pay off the judgment debt to his mother in law and to pay his other debts. It is my view that he is not using any portion of income to finance a lavish lifestyle.
Sally Street's financial position 90Sally Street gave short oral evidence in Court as to her current financial situation. It is not good. She is currently unemployed. She is receiving Centerlink benefits of $600 a fortnight [T30.14-18]. In cross examination Sally Street stated that she is engaged as a singer approximately once a month and earns an income of around $200 each performance [T29.30-34]. 91Currently she rents a property in the Eastern Suburbs, the rent being paid by Sandy Street. The rent for Sally Street's residence is $1,150 a week and currently she is 18 days in arrears with her rent payments. She has been served with a termination notice due to these arrears [T28.15-21]. She lives with their child who is approximately 8 years of age [T27.5-6]. 92Sally Street drives an eight and a half year old Porsche which she uses to take her child to school and go shopping, among other activities [T27 & 28.46-50 & 1-8]. Sally Street is obliged to pay around $2,000 a month for the use of the car as it is subject to a hire purchase agreement. Sandy Street is paying these monthly fees for the car [T28.10-13]. 93She estimated that the total value of her assets is probably in the vicinity of $10,000 [T29.39-49] and that includes a grand piano. She also explained that she had recently sold a ring that she had won at a ball, which was worth $10,000 which had been sold for $2,000. She said that selling the ring was good as she could buy food [T30.30-35]. 94The present position is that Sally Street and their child almost are entirely reliant on Sandy Street's income to pay for their accommodation, food and other essential living expenses [T30.41-44].
Conclusion 95In my view, the most important discretionary factor is to strike a balance so that all parties can afford to survive financially until these proceedings are resolved. 96To avoid injustice it is necessary that an arrangement be struck whereby Sandy Street is able to meet his judgment debt obligations to Helen McDonald, but which will also allow him to support himself, Sally Street and their child and continue to pay off his other debts. The variation to the garnishee order would not deny Helen McDonald some of 'her fruits' of her judgment. 97If Sandy Street were unable to pay his creditors, the situation that would arise is that it would be financially disastrous for all concerned including both Helen McDonald and Sally Street. If this situation becomes a reality then it is likely that Sandy Street would not be able to pay Helen McDonald's judgment debt as he may face bankruptcy. It is likely that none of the parties would be able to meet their day to day costs of living. 98After taking account of the financial position of each of the parties, I am satisfied that if the current garnishee order stands, there will be an injustice caused to both Sandy Street and Sally Street. Helen McDonald is currently receiving more than enough to enable her to pay her rent and living expenses. For these reasons, it is my view that justice dictates the variation as sought by Sandy Street should be granted.
Costs Finally, costs of the notice of motion filed 18 July 2014 are reserved.
The Court notes: The undertaking given by Sandy Street to the Court on 22 July 2014, that he will take immediate measures to sell his chambers (including his shareholding in Seven Wentworth North Pty Ltd) and the further agreement between Helen McDonald and Sandy Street that the proceeds of the sale of those chambers will be paid equally between them on settlement of the sale, is continued until further order of the court. The Court orders that: So far as the cross-vesting application is concerned, (1) These proceedings be transferred to the Family Court of Australia, Sydney Registry pursuant to s 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth). So far as the variation of the garnishee order is concerned, (2) Until further order of this Court or the Family Court (a) The first defendant within two business days of cleared receipt of income disburse 50% solely for the purpose of meeting any existing or accumulating tax liability for Sandy Street. (b) The first defendant disburse an amount for maintenance payable for the child of the marriage to the Child Support Department in the sum of $1,300 per month and that there be no publication of her name. (c) The first defendant disburse an amount for rent due and payable for the premises of Sally Street and for the hire car payments due for Sally Street's motor vehicle and interim maintenance totalling $8,600. (d) The first defendant disburse 50% of the remaining balance to the plaintiff and the first defendant retain the remaining 50% of that balance for his own use. So far as costs are concerned, (3) Costs are reserved.
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: 05 September 2014
McDonald
Street
[2008] VSC 341
[2013] FamCAFC 24
[2014] FamCA 533
(1988) 14 NSWLR 711
(2012) 263 FLR 148
(2007) 69 NSWLR 577
[1939] HCA 23