It points out that the word derives from an old French word meaning "to set a dog on".
66 It seems to me that if there is persistent disturbance of a person, by conduct, that can be sufficient to amount to harassment.
67 The first question to which I now turn, is whether a sufficient case has been made out to justify the intervention of the Court on an interlocutory basis. In making this decision, I note that the type of interlocutory relief that is sought here is of a different kind to the principal relief that is sought.
68 It is common enough for a Court to grant interlocutory relief which is of a different kind to that which is sought on a final basis. Examples are the various types of orders (like appointment of a receiver) which are designed to preserve an asset in dispute pending a hearing, orders (like a Mareva order) which are not necessarily directed to preserving some particular asset which is in dispute, but which are designed to stop the exercise of the Court's process from being futile through the defendant disposing of his assets (Cardile v LED Builders Pty Limited (1999) 198 CLR 380) and orders like an Anton Piller order that seek to preserve evidence when there is a risk that the evidence will be destroyed or spirited away or hidden (Long v Specifier Publications Pty Limited (1998) 44 NSWLR 545 at 547-548).
69 The contention of Ms Scheiff about whether this is the type of case where the Court would consider granting an injunction are that over the last few months Dr Nguyen has harassed and intimidated her. It is said that his conduct concerning the motor car amounts to harassment, when he permitted the vehicle to be repossessed and then sought to use it as a bargaining chip in the proceedings he had begun. The removal of credit cards is likewise said to be harassment.
70 The threat of the plaintiff to come back into the premises is also said to be harassment. The plaintiff having entered the premises without permission, and removed some items, is said to be harassment, the event of 15 December is also relied on. The incidents of shouting that she deposes to, and threatening, are likewise relied on. It is common ground between the parties that at no time has there been any suggestion of physical violence.
71 Dr Nguyen disputes that there has been in the past, or will be in the future, any harassment. His counsel says that there are particular difficulties in deciding who to believe, in an interlocutory hearing as this, where there has only been very truncated cross-examination.
72 As an example, he points out how Ms Scheiff in her affidavit in reply gave a far more elaborate, and far more damaging to Dr Nguyen, account of the event of 1 November than she did in her first affidavit.
73 He points out that her solicitor's letter of 5 December said nothing about this incident of 1 November and one would expect that complaint would have been made if the incident had the overtone of threat which Ms Scheiff's second affidavit gives it. Likewise he says there was no complaint to the police about this incident.
74 I do not think that all of the acts which Ms Scheiff relies upon amount to harassment. For Dr Nguyen to withdraw credit cards, which enabled Ms Scheiff to run up bills which he had to pay, does not seem to me anything like harassment. Likewise, the failure to renew the lease of the car, or to pay out the residual, is not, of itself, harassment.
75 I think, however, that the use that is sought to be made of the car as a bargaining chip in the negotiations, combined with the making of the threat to move back into the house, does have some flavour of harassment to it.
76 The few incidents of raised voices are now some months old. They would not, of themselves, warrant the grant of an injunction.
77 More important, however, is the view that I have come to, that it is not necessary for there to be harassment already committed before there is power under s 53 to grant an injunction. Power exists under s 53 to grant an injunction on a quia timet basis.
78 In my view, if there was a sufficiently serious risk that harassment would occur in the future, that can justify the granting of an injunction, provided other considerations relevant to the balance of convenience also favour the granting of the injunction.
79 In my view, if Dr Nguyen, were to move back into the premises, there is a very real risk that there would be unpleasantness between himself and Ms Scheiff, on a repeated basis, such that she was disturbed persistently. The situation would be one which met the test stated by the Full Family Court in the second Davis v Davis case. (See paragraph 61 above.)
80 I therefore turn to consider the balance of convenience. One factor which Ms Scheiff puts is that the plaintiff has other accommodation, and can afford it. The evidence discloses that Dr Nguyen is currently living in a one bedroom apartment in Chatswood, with Ms Becky Wu. The apartment is leased in Ms Wu's name, on a six month lease, which expired last Wednesday. That lease is now being extended on a month by month basis. Dr Nguyen pays all the rent at that apartment with no contribution from Ms Wu.
81 While the evidence about whether Dr Nguyen can afford it is skimpy, there is material from which I would infer that he is in employment in a job of some responsibility, he has been living away from the Greenwich property for quite some months now, and his outgoings have, at least to some extent, decreased during that time, as he is no longer bearing expenses run up by Ms Scheiff on credit card and other accounts.
82 Another factor is that there are no complications concerning children which need to be taken into account.
83 Ms Scheiff puts that it is impractical for them to both live in the home.
84 Dr Nguyen gave evidence that the Greenwich property has three bedrooms and two bathrooms, there is a study, lounge room, dining room, kitchen, laundry, terrace and lock up garage and there are at least three separate entrances to the property.
85 However, the layout inside the house is such that the bedrooms are directly opposite each other. Ms Scheiff says there are relatively ineffective locks to prevent a person entering another bedroom. The living area of the house is an open design. There is only a one car garage.
86 Although it is said that there are three entrances, one entrance is the main entrance at the front of the house. The other is the entrance through the laundry at the rear of the house that gives access to the backyard and the third entrance is from the dining room.
87 While there are these three entrances, once one is inside there is no way of dividing the house into two self contained parts. It seems to me that it is impracticable for them both to live in the house together.
88 As well, Ms Scheiff offers a series of undertakings. She offers the usual undertaking as to damages, an undertaking not to dispose of the contents of the house, an undertaking to pay Council rates, water rates and building insurance promptly after Dr Nguyen making the invoice for those accounts available to her, an undertaking to pay one half of the amount that the mortgagee requires from time to time, whatever that might be, to prevent the mortgage from falling into default (the undertaking is cast in this way because there is some unclarity in the evidence about what that amount is) and, finally, an undertaking to file a defence and cross-claim within seven days and thereafter prosecute the proceedings as expeditiously as possible, including joining in any application for expedition that Dr Nguyen wishes to make.
89 Dr Nguyen says the balance of convenience favours him. He says that he has a very strong claim in the principal proceedings. It is correct that the evidence which has been filed so far suggests that he has most of the equity in the property.
90 Ms Scheiff has put on no evidence which goes to this topic, and at a final hearing that situation might change, but on the evidence which is here today, it looks like Dr Nguyen has most of the equity in the property. As well, the relationship between the two of them was a comparatively short one.
91 It is well established that the strength of the case is a factor which can be taken into account in assessing the balance of convenience.
92 Dr Nguyen also points out that he continued to pay for large numbers of the joint expenses for some months after the relationship was over. While that appears true, I have difficulty in seeing how it impacts on the balance of convenience about whether an injunction could be granted today. Those payments might count as contributions by Dr Nguyen which can be taken into account in making an order under s 20. If so, they provide an additional reason why it seems Dr Nguyen has a strong case. I cannot see that they have relevance beyond that.
93 Dr Nguyen points out that Ms Scheiff has not put on any evidence about any financial disadvantage she would suffer in moving out of the property. Dr Nguyen says that she had the onus of convincing the Court that it is appropriate for an injunction to be granted, and she has chosen not to put this important part of the relevant facts before the Court.
94 Dr Nguyen points out that she filed a supplementary affidavit on 26 February, when she had another chance to put these factors before the Court, but failed to do so.
95 I accept that that is the state of the evidence. The failure of Ms Scheiff to show that she would suffer disadvantage in moving out of the property is a factor which must be weighed in the balance of convenience.
96 Dr Nguyen also says that, separately from whether he is right in saying that he has a strong claim in the principal proceedings, he has a property right which should not be taken away from him without good cause. He says that even before determination of the principal proceedings, he is a joint tenant of the property, and ordinarily a joint tenant is entitled to the use and enjoyment of the property.
97 That is, undoubtedly, a consideration which must be taken into account. However, it cannot be decisive because by enacting s 53 Parliament has, in effect, given the Court the power to override such property rights, when the circumstances of the case require it.
98 The single most important factor in the balance of convenience, it seems to me, is that the granting of an injunction would preserve the status quo. It is now a little over seven months since Dr Nguyen lived in the premises. Even if he is right in saying that, initially, he left on the basis that he and Ms Scheiff would have a trial separation only, there have been later events, like the letter of 17 December 2001 which I have mentioned earlier, where, at a time when proceedings were imminent, and at a time when it must have been clear that the separation was no longer a trial, a deliberate decision was taken not to pursue an application for Ms Scheiff to vacate the house.
99 The usual rule, where property is owned by two people jointly and one excludes the other, is that the person who does the excluding should pay an occupation fee. The law is summarised in the decision of Beasley JA (with whom Stein JA agreed) in Biviano v Natoli (1998) 43 NSWLR 695, as follows:
"The rights of co-owners of property are to equal occupation of the land, neither one nor the other owning any particular parcel of land: see Megarry & Wade, The Law of Real Property, 5th ed (1984) Stevens, London at 422; Jacobs v Seward (1872) LR 5 HL 464; Bull v Bull [1955] 1 QB 234; Jones v Jones [1997] 1 WLR 438.
A tenant in common is entitled to exercise acts of ownership over the whole of the common property without liability to be called upon to account in respect thereof: Luke v Luke (1936) 36 SR(NSW) 310; 53WN (NSW) 101. This general rule will be displaced, however, where a tenant in common has wrongfully excluded a co-tenant from exercising the right to occupation. At common law a co-tenant so excluded could sue for ejectment and for mesne profits: Goodtitle v Tombs (1770) 3 Wills KB 118; 95 ER 965, and could also bring a partition suit to charge the occupying co-tenant with an occupation rent: Pascoe v Swan (1959) 27 Beav 508; 54 ER 201. Long Innes CJ in Eq in Luke v Luke said (at 314; 102): '... by excluding [a] co-owner from the exercise of his legal rights the tenant in common who so excluded his co-owner has committed a legal wrong.'
Long Innes CJ in Eq rejected the proposition that a co-owner who remained in occupation of property was, by that circumstance alone, subject to an occupation fee. An entitlement to an occupation fee only arose where there was conduct sufficient for the Court to infer a denial of the claimant's title. See Chieco v Evans (1990) 5 BPR 11, 297; Jones v Jones (at 441), per Lord Denning MR. In Forgeard v Shanahan , Meagher JA reiterated the principles which govern the right to claim an occupation fee. His Honour stated (at 223):
'... Turning to the liability of a co-owner in occupation to pay an occupation fee, the position at law is fairly clear. He was not liable unless he excluded his co-owner, in which case he rendered himself liable in ejectment for the mesne profits, or, if he constituted himself a bailiff, in which event he would be liable in an action of account, like any other bailiff: Re Tolman's Estate (1928) 23 TAS LR 29 at 31; Rees v Rees [1931] SASR 78 at 80-81. Indeed, the whole bias of the law against making a co-owner in occupation liable to account is precisely based on the rationale that if such a liability were to exist, a co-owner could, by abstaining from entering into occupation, turn his co-owner into an involuntary bailiff. As far as equity is concerned, an occupation fee will be exacted in at least two circumstances: first, in a partition suit (or related litigation): if there has been an exclusion, the tenant in occupation will be charged with an occupation fee (see, for example, Pasco v Swan (1859) 27 Beav 508; 54 ER 201); this is an example of equity following the law; and secondly, if the owner in occupation claims an allowance in respect of improvements effected by him, equity will permit such an allowance only on terms that he is accountable for an occupation fee - this is an example of he who comes to equity having to do equity: see Teasdale v Sanderson (1864) 33 Beav 534; 55 ER 476.'"
100 Notwithstanding that general law rule, Biviano v Natoli held that there was no ouster or exclusion of the type referred to in that rule where one co-owner obtains an order excluding the other from the property under an express statutory power like an apprehended violence order made under s 562 of the Crimes Act 1900 - see Biviano v Natoli at 702-703. That reasoning would apply if an injunction were to be granted under s 53 in the present case.
101 Here, however, Ms Scheiff has done more than merely apply for a Court order. As well, she has changed the locks. That is something which, in some circumstances, can amount to an exclusion, of a kind which requires, under general law principles, an occupation rent to be paid (see Beresford v Booth [1999] SASC 166. At the moment, I am not able to decide, on the evidence and argument before me, whether the present is such a case. However, the evidence and argument before me at least shows that there is a realistic practical possibility that, at any trial, it will be held that Ms Scheiff has excluded Dr Nguyen from the property.
102 The undertaking which she offers, to pay the listed outgoings and half the mortgage, might possibly be less than a commercial occupation rent. I cannot make any more precise finding than that on the evidence before me as there was no evidence about the rental value of the property, only about what its purchase price was some years back.
103 This raises a possibility that, week by week pending the trial, Ms Scheiff will be paying less than the amount that, after a full examination of the circumstances, a court might hold she ought pay. It is no more than a possibility, especially bearing in mind that she will be paying the whole of the outgoings other than the mortgage.
104 Section 20 of the Property (Relationships) Act 1984 enables the Court to adjust the interests of parties in property "as to it seems just and equitable having regard to" two different types of contributions with which are listed in that section.
105 In Roy v Sturgeon (1986) 11 NSWLR 454 Powell J at 466 took the view that the only contributions which the Court could look at in effecting this exercise, were ones made during the period of the relationship.
106 However, that view has since been departed from. Bryson J in Foster v Evans (1997) DFC ¶ 95-193 at 77681 disagreed with it. In Jones v Grech [2001] NSWCA 208; (2001) DFC ¶ 95-234 Davies AJA at [24] - [26] and Ipp AJA at [77] - [82] and held that contributions made prior to the commencement of the de facto relationship could be taken into account.
107 In Green v Robinson (1995) 36 NSWLR 96 Cole JA said at 115-116:
"Further, in assessing whether it will exercise the s20 power to adjust regard is to be had to contributions made to the date of the application. The underlying presumption of s20 is that the defacto relationship has ceased, the parties have joint or several property, and it may be just and equitable to adjust those existing property entitlements having regard to past contributions of the type described so that the financial relationship between the parties may be finalised: see s19."
108 While neither of the other Judges of Appeal in Green v Robinson agreed or disagreed with this proposition I find it, with respect, persuasive. It is a logical corollary of the Court of Appeal in Jones v Grech rejecting the limitation that Powell J had found and permitting pre-relationship contributions to be taken into account, that post relationship contributions can also be taken into account.
109 Further, when s 19 of the Act provides:
"In proceedings for an order under this Part, a Court shall, so far as is practicable, make such orders as will finally determine the financial relationships between the parties to a domestic relationship and avoid further proceedings between them."