Patel v Patel and ORS

Introduction:

1. For ease of reference, and without intending any disrespect to the parties, I shall refer to the plaintiff as "the Wife", the first defendant as "the Husband", the second defendant as "the Husband's brother" and the third defendant as "the Brothers' company".
2. On 8 September 2011 the Wife, the Husband and the Husband's brother entered into a deed pursuant to which the Husband was to make various payments to the Wife and the Husband's brother guaranteed the making of those payments. The Deed also provided that upon default of payment the defined "First Principal Sum" would immediately become due and payable.
3. On 26 November 2012 the Wife (as the lender) and the Husband, the Husband's brother and/or the Brothers' company (as the borrowers) entered into a loan agreement.
4. On 20 December 2013 the Wife filed a Statement of Claim in this court naming as defendants the Husband, the Husband's brother and the Brothers' company.
5. The Statement of Claim, broadly speaking, pleads two causes of action against those defendants.
6. The first cause of action concerns the Deed. The amount sought to be recovered in relation to that aspect of the claim is approximately $200,000.00. The defendants to that cause of action are the Husband and the Husband's brother.
7. The second cause of action concerns the loan agreement. The amount sought to be recovered in relation to that aspect of the claim is approximately $14,000.00. The defendants to that cause of action are the Husband, the Husband's brother and the Brothers' company.
8. Each defendant filed a defence putting in issue any obligation to make payment to the Wife in relation to either of the causes of action pleaded in the Statement of Claim.
9. On 23 May 2014, the Wife filed a Notice of Motion seeking various orders including an order for the Defences to be struck out or, alternatively, summary judgment.
10. The Notice of Motion was listed for hearing before me on 18 July 2014. The Wife was represented by Mr Stapleton of counsel. The Husband and the Husband's brother appeared in person. There was no express appearance by the Brothers' company.
11. On embarking upon the hearing of the Notice of Motion, two things were of concern to me.
12. First, that the Husband and the Husband's brother appeared to have only a rudimentary command of English. Their first language is Hindi. They did not appear with the assistance of an interpreter - whether they could financially afford one is not revealed in the evidence.
13. Secondly, whether the court had jurisdiction to entertain that aspect of the Wife's claim which related to the Deed. This concern arose because it appeared from the affidavit material filed in support of the Notice of Motion that, before the Deed was entered into, the Wife had commenced proceedings in the Family Court of Australia against the Husband for an adjustment of property interests and the payment of spousal maintenance. There was also within the Family Court system at that time an application for child support.
14. Accordingly, I raised with Mr Stapleton whether or not this court had jurisdiction to entertain that aspect of the Wife's pleaded causes of action. (I hasten to add that I saw no jurisdictional issue in relation to the loan which, on the material before me, did not seem to be a potential "matrimonial cause" within the meaning of the Family Law Act 1975 (C'th) ("the Act") but a commercial arrangement between the Wife, the Husband, the Husband's brother and the Brothers' company - although I note that, given the amount claimed, if that were the only cause of action it ought more appropriately be determined in the Local Court.)
15. Mr Stapleton submitted on that occasion that this court did have appropriate jurisdiction. However, those submissions were not then fully developed.
16. Because of my continuing concern in that regard and because there was no proper contradictor (given the lack of legal representation by the Husband and the Husband's brother, aggravated by the language difficulties), I ordered that the Wife show cause as to why that part of the proceedings which sought to enforce the Deed should not be struck out as an abuse of process. I fixed the show cause hearing date for 19 September 2014 and I made directions concerning the filing and serving of written submissions.
17. Between 18 July and 19 September 2014, the Assistant Registrar of this court arranged for pro-bono legal representation for the (personal) defendants - limited to the jurisdictional issue. In the result, when the show cause hearing was conducted, the Wife was represented by Mr Stapleton of counsel and the Husband and the Husband's brother by Ms Withana of counsel. I take this opportunity of again expressing the court's gratitude to Ms Withana for accepting that brief on that basis.
18. (I earlier referred to the fact that when the Husband and the Husband's brother appeared on 18 July 2014 they did so without the assistance of an interpreter. As I have just indicated they were represented by counsel on 19 September 2014. In the interval, and in parallel to the efforts of the Assistant Registrar, I made informal enquiries within the court as to whether it could make arrangements for the provision of a qualified interpreter for those defendants - as is invariably the case in criminal proceedings. Those informal enquiries were ultimately unsuccessful. Except for the intervention of Ms Withana, a difficult question would have arisen as to whether the show cause hearing could proceed, in accordance with law, where the respondents were unable to make submissions to the court).
19. Each counsel submitted detailed written submissions in accordance with the directions I earlier made; and Mr Stapleton additionally filed and served written submissions in reply. Brief oral submissions were then made - after which I reserved my decision.

The Relevant Facts:

1. The relevant "facts" (for the purpose of determining this show cause hearing only) are taken from the affidavit of the Wife made 22 May 2014 in support of the Notice of Motion filed 23 May 2014 (to which I referred at paragraph 11 above). I do not understand them to be in dispute.
2. The Wife and the Husband married on 16 January 2002. They separated in either July 2009 or November 2010 - for present purposes the difference (like the celebrated railway line) is immaterial.
3. In about December 2010, the Wife and Husband commenced divorce proceedings in India.
4. In April 2011, the Wife commenced proceedings in the Family Court of Australia seeking orders for property adjustment and maintenance for herself. In those proceedings the Wife and the Husband were represented by solicitors experienced in family law matters. Such proceedings require each party to make a full disclosure about her/his financial position. Frequently (and not surprisingly) there are complaints that inadequate disclosure is being made by one party (or indeed both).
5. In the proceedings brought by the Wife, she was dissatisfied with the disclosures being made by the Husband. According to her, she was asked to discontinue those proceedings in order to assist the Husband and the Husband's brother "avoid the disclosures they were required to make under [the Act]" (cf paragraph 10 of the Wife's affidavit). The Wife said she agreed to do so (why she did so is not explained - and I do not speculate as to the reason) and in the process signed a "settlement document". She did that without reference to her solicitors, but in the expectation that it would be placed before the Family Court for approval.
6. That document was not ultimately pursued with. Rather, through their respective solicitors, the parties negotiated a further agreement (which is the Deed the subject of these proceedings).
7. By 24 August 2012 the parties had effectively reached agreement. They would enter into the Deed upon the following two preconditions being satisfied. First, that the Wife and the Husband had entered into a binding child support agreement concerning the child of the marriage. Secondly, that the Wife had discontinued her application in the Family Court for property and maintenance orders.
8. On 31 August 2011 the Wife filed a Notice of Discontinuance in the Family Court and on 8 September 2011, a binding child support agreement was made.
9. Also on 8 September 2011 the Deed was executed. The following aspects of it are of importance.
10. First, the recitals: (a) referred to the Wife's (by now discontinued) proceedings for property adjustment and maintenance orders; (b) noted the provision by the Husband and the Husband's brother in those proceedings of "limited financial disclosure documents"; and (c) noted an agreement (as set out in the Deed) in relation to the adjustment of property and spousal maintenance (cf Recital G); and noted the separate agreement for child support.
11. Secondly, the operative parts, inter alia, required the Husband to pay the Wife $300,000.00 in instalments; and the Husband's brother guaranteed those payments. In this context it is significant to refer specifically to clause 10: "The parties to this agreement intend that this agreement govern all property adjustment rights as between [the Husband and the Wife] by virtue of their marriage to one another and as between [the Wife and the Husband's brother] arising in any way whatsoever." It will be noted that that clause (unlike Recital G) referred only to "property adjustment rights" - and did not specifically include "spousal maintenance".

The Relevant Statutory Framework:

1. Part V of the Act confers exclusive jurisdiction on specifically nominated courts in respect of a "matrimonial cause" instituted under the Act. It is not necessary to set out the somewhat complicated arrangements for the distribution of business between those courts.
2. One court, however, which does not have jurisdiction to determine proceedings with respect to a matrimonial cause is the District Court of New South Wales.
3. Section 4(1) of the Act, inter alia, provides a number of definitions of "matrimonial cause". In the present case Ms Withana only relies on the following: "(c) proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage; and (ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings: (i) arising out of the marital relationship …" Specifically, Ms Withana did not rely on clause (eaa). I am therefore not called upon to decide whether the Deed is a binding financial agreement within the meaning of Part VIII of the Act.
4. Section 8(1)(a) of the Act relevantly provides that "proceedings by way of a matrimonial cause shall not be instituted except under this Act".
5. Part VIII of the Act is concerned with Property, Spousal Maintenance and Maintenance Agreements.
6. Section 72 provides for one party to a marriage to maintain the other party, where certain statutory criteria are satisfied. Subject to certain exceptions not presently relevant, an agreement between the parties to a marriage regarding maintenance which is not approved by a relevant court has no effect and is not enforceable (see section 87 of the Act). (I pause to observe that as the Deed was not approved by a relevant court - nor apparently intended to be. This is likely to explain why, although there is a reference to "spousal maintenance" in the Recitals to the Deed, there is no such reference in clause 10 of the operative provisions. It also explains why in her submissions Ms Withana did not ultimately place any reliance on the definition in clause (c)).
7. The Act also empowers a relevant court to make orders altering the property rights of the parties to a marriage (see section 79 of the Act). This includes empowering a relevant court to vary or set aside orders made in previous property settlement proceedings (see section 79A of the Act).
8. Notwithstanding that power to vary or set aside orders (or possibly subject to it), section 81 of the Act directs the relevant court, as far as practicable, to make orders which will finally determine the financial relationships between the parties to a marriage and to avoid further proceedings between them.
9. Finally, given the issues raised in the present matter, it is also appropriate to note that section 119 of the Act provides that either party to a marriage may bring proceedings against the other in contract or tort.

The Issue on the Show Cause Hearing:

1. The issue between the parties in this show cause hearing is a discrete one - and that is whether the proceedings brought by the Wife are (in whole or in part) in substance a matrimonial cause within the meaning of the Act (as contended for by the Husband and the Husband's brother) or whether they are no more than a common law action to enforce the contractual obligations of the Deed (as contended for by the Wife).
2. (I pause to observe that in her written submissions Ms Withana went further and made alternative submissions that the Deed was contrary to public policy and was therefore void for illegality. During oral submissions Ms Withana accepted that such a submission was beyond the specific purpose of the show cause hearing and was more appropriately a matter to be specifically pleaded in a relevant defence and to be determined on the evidence at an ultimate final hearing).
3. Ultimately both counsel submitted that the determination of the show cause hearing depended upon a consideration of three specific authorities: the High Court decision in Perlman v Perlman (1984) 155 CLR 474; the New South Wales Court of Appeal decision in Bate v Priestley (1989) 97 FLR 310 (both of which were relied upon by Mr Stapleton); and the West Australian Court of Appeal decision in Sewell v Wilson (2010) 242 FLR 402 (which distinguished Perlman v Perlman and Bate v Priestley) (was relied upon by Ms Withana).
4. It is appropriate to briefly consider each of those authorities.
5. Perlman v Perlman was decided on 4 February 1984. At that time "matrimonial cause" was defined by section 4(1) of the Act to mean, inter alia: "… (c) proceedings between the parties to a marriage with respect to: (i) the maintenance of the parties to the marriage; … (ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings in relation to concurrent, pending or completed proceedings for principal relief between those parties; … (f) any other proceedings (including proceedings with respect to the enforcement of a decree …) in relation to concurrent, pending or completing proceedings of a kind referred to in any of paragraphs (a) to (e) …"
6. The relevant facts underpinning those proceedings were that on 4 July 1978 the Family Court made a decree dissolving the marriage between the husband and the wife. On 10 July 1978 the (former) husband and wife made a deed concerning financial matters and which was a "maintenance agreement" as defined by the Act.
7. The deed (relevantly) provided: first, that the husband would invest $50,000.00 in income-producing real estate, of which the wife was to receive the profits; and secondly, the husband would make weekly payments to the wife until that sum of $50,000.00 was so invested.
8. The deed was approved by the Family Court on the day it was made.
9. The husband failed to make the payment of $50,000.00, or the weekly payments, and accordingly the wife commenced further proceedings in the Family Court to enforce the deed.
10. It would appear that the Family Court held it had no jurisdiction to enforce the deed (see paragraph 2 of the judgment of the Chief Justice in Perlman v Perlman).
11. The wife then commenced proceedings to enforce the deed in the Equity Division of the Supreme Court of New South Wales. The husband moved to strike out the relevant Summons on the ground the Family Court had exclusive jurisdiction. (How that submission could have been thought appropriate in circumstances where it would appear that the Family Court had earlier ruled it had no jurisdiction is an interesting point.)
12. The husband's application was dismissed at first instance. He then appealed to the New South Wales Court of Appeal. That court dismissed the husband's appeal. The husband then appealed to the High Court - on the sole ground that the proceedings constituted a matrimonial cause and that the Supreme Court did not have jurisdiction.
13. In separate judgments (the leading judgment being that of Wilson J) each of the justices of the High Court dismissed the husband's appeal.
14. In summary, the High Court held that the proceedings did not arise out of the marital relationship, which had been dissolved, but out of the deed which the husband failed to carry out. The fact that the deed arose out of a marital relationship which had previously existed did not mean that the proceedings arose out of that relationship. (It might be relevant to note that in the High Court at least it was not argued by the husband that the proceedings were a matrimonial cause in that they were the enforcement of a decree of the Family Court).
15. Bate v Priestley was decided on 4 October 1989. By that date the definition of "matrimonial cause" in paragraph (ca) of section 4 of the Act was substantially and relevantly different. The relevant definition was: " 'matrimonial cause' means: … (ca) proceedings between the parties to a marriage with respect to property of the parties to the marriage or either of them, being proceedings: (i) arising out of the marital relationship; (ii) in relation to concurrent, pending or completed proceedings between those parties the principal relief; or (iii) in relation to the dissolution or annulment of that marriage or the legal separation of the parties to that marriage. …"
16. The relevant facts were as follows. The (former) husband and wife were divorced sometime before 1979. In early 1979 the Family Court approved a "Deed or Maintenance Agreement" made between the husband and wife. In 1981 one of the parties to the initial deed commenced proceedings in the Family Court to revoke that earlier approval. Those proceedings were settled and, with the further approval of the Family Court, the husband was ordered to pay the wife $50,000.00 by way of property settlement and/or lump sum maintenance.
17. The order for that payment, however, merely gave effect to a further deed made between the parties on the date of that further approval but before the orders were made.
18. It is important to give some attention to the terms of the deed which gave rise to those further consent orders: "This Deed is made the 31st day of 1984 between [the former wife] (hereinafter called 'the creditor' and [the former husband] (hereinafter called 'the debtor') WHEREAS: A. The creditor and the debtor were parties to litigation in the Family Court of Australia … B. In settlement of those proceedings the debtor agreed to pay the creditor the sum of $50,000.00 on or before 1st July 1985, and to provide certain security of the said payment. C. The debtor was unable to provide such security, and the creditor agreed to accept an acknowledgment of debt which could be used to found a claim in the District Court of New South Wales which can then be used to enforce the payment of the debt under the Bankruptcy Act 1966. IT IS AGREED:
19. The debtor will pay to the creditor the sum of $50,000.00 on or before 1st July 1985, and in respect to such payment, time shall be of the essence.
20. Such payment will be in the form of a bank cheque payable to the creditor, or to such person as she shall nominate in writing no later than 25th June 1985."
21. At the time the Family Court made the orders approving the settlement it noted "… that the husband has executed and delivered to the wife on this day an Acknowledgment of Debt in respect to the sum of fifty thousand dollars ($50,000.00) referred to [in the relevant order]".
22. The husband did not pay the sum of $50,000.00 on or before 1 July 1985. As a result, the wife commenced proceedings against him in the District Court of New South Wales to recover that sum. The pleaded cause of action was simply the terms of the deed.
23. The husband submitted in the District Court that this court did not have jurisdiction to entertain the wife's proceedings because the amount sought to be recovered under the deed was a matrimonial cause within the meaning of the Act.
24. The husband's submissions failed at first instance and he therefore appealed to the Court of Appeal.
25. The majority in the Court of Appeal (the leading judgment was given by Hope AJA, Mahoney JA agreeing; Kirby P dissenting) dismissed that appeal.
26. In the course of his Honour's judgment, Hope AJA said at page 327: "It is not sufficient to establish that … the deed arose out of the matrimonial relationship; it is the proceedings that must have so arisen". His Honour further observed at page 329: "It is true that in the present case the Family Court ordered the payment of the sum of $50,000.00 on or before 1 July 1985 by way of property settlement and/or lump sum maintenance, that the plaintiff can still enforce that order by the various means available under the Family Law Act and Regulations …" Having made that observation his Honour further noted that: "… the deed was expressly entered into to provide additional remedies for [the wife/the creditor] to ensure the payment of that sum." His Honour then said: "Nonetheless the proceedings arose out of the deed and not otherwise. They did not arise out of the marital relationship which led to proceedings in the Family Court and to the execution of the deed. The parties themselves expressly intended that the deed should provide remedies outside those available under the Family Law Act and Regulations including proceedings in the District Court. … The Family Court noted the terms of the deed in its orders and in deciding to revoke the previously approved maintenance agreement presumably accepted the right of the wife to enter into a deed which gave her remedies outside those provided by the Family Law Act and Regulations. It would be unfortunate if this Court had to decide that both the parties and the Family Court were wrong. I do not think it has to do so."
27. Later in his Honour's judgment, Hope AJA at page 332 restated that "… the deed is a separate and independent source of that obligation [that being the obligation on the part of the husband to pay the wife $50,000.00], intended by the parties and it would seem by the Family Court to be enforced independently. The occasion for the bringing of the proceedings was the failure by [the husband] to comply with is obligations under the deed".
28. Sewell v Wilson was decided on 3 August 2010. The relevant definition of matrimonial cause at that time was: "… (ca) proceedings between the parties to a marriage with respect to the property of the parties to a marriage or either of them, being proceedings: (i) arising out of the marital relationship. …"
29. The relevant facts were as follows. The husband and wife married in 1986. In 1990 the husband purchased a residential property in the name of the wife. It became the matrimonial home. The marriage broke down in 2001 and in February 2003 the parties were divorced. No application for a property settlement was made by either party at any time in the Family Court.
30. In 2008 the husband brought proceedings in the West Australian District Court against the wife based on an alleged oral contract. The Statement of Claim pleaded that in 2007 the parties agreed that if the husband, at his expense, undertook certain maintenance and renovation work on the former matrimonial home then he would receive 18% of the nett proceeds of sale. The husband further pleaded that after undertaking that work the wife failed to sell the property or pay him an amount equivalent to 18% of its value. He therefore sued the wife for damages for breach of contract.
31. In her defence, the wife, inter alia, pleaded that the District Court did not have jurisdiction to entertain the claim because it was, in substance, a matrimonial cause within the definition of the Act. She therefore moved the District Court to strike out the husband's Statement of Claim. (The wife also denied the existence of the alleged contract).
32. At first instance, the wife was unsuccessful. She then appealed to West Australian Court of Appeal. That court unanimously held that the proceedings were in substance a matrimonial cause and that the proceedings in the District Court were intended to circumvent the need for a property settlement application in the Family Court. Accordingly the appeal was allowed and the husband's proceedings were dismissed.
33. In the course of the judgment of Newnes JA (with whom Buss and Murphy JJA agreed), his Honour said (at 413-414): "It is apparent, however, from the admissions made by the [husband] that the alleged contract was not, in truth and substance, a contract for labour and materials as pleaded. In reality, the contract was a settlement of the [husband's] claim to an interest in the property arising out of the marital relationship. The figure of 18% represented what the [husband] considered would be approximately the amount he would be awarded on a property settlement under the Family Law Act. To that end, he apparently perceived it to be in his interest to carry out some improvements to the property to maximise its value. The contract was, as the [husband] frankly admitted before the primary judge, simply a means of recovering the amount he considered he was entitled to arising out of the marital relationship, while at the same time avoiding what he perceived to be the vague reason time involved in proceedings for a property settlement in the Family Court (WA). It is plain, in my view, that the proceedings in the District Court are in substance proceedings with respect to the property to recover the benefit to which the [husband] alleges he is entitled arising from the marital relationship. The proceedings have arisen because the [wife] declined to sell the property and give the [husband] the 18% of the proceeds which he considered constituted that entitlement. In my respectful opinion, the primary judge erred in concluding that the decision in Perlman was decisive in this case. The circumstances in Perlman were quite different. In that case, the issue of the distribution of the marital property had come to an end in a final agreement approved by the Family Court and what was sued on was that final agreement. Whilst the marital relationship had given rise to the issue of the distribution of the marital property and to the agreement, the marital relationship itself was no longer relevant to the proceedings in the Supreme Court to enforce the final agreement. Similarly, in Bate v Priestley the District Court proceedings were brought on a deed following the resolution of the entitlements of the parties in respect to the marital property in Family Court proceedings and, moreover, in making its orders pursuant to the settlement the Family Court had noted that the deed expressly providing for remedies outside the Family Court. As Hope AJA observed, in revoking the previous agreement the Family Court presumably accepted the right of the wife to enter into a deed which gave her remedies outside of [the Act]. In the present case, on the other hand, the proceedings brought by the [husband] are simply intended to circumvent the need for proceedings in the Family Court (WA) to resolve the respective rights of the parties to the property arising out of the marital relationship."

Consideration:

1. Although there is no express admission by either the Husband or the Wife in their affidavits filed in connection with the Wife's Notice of Motion or in the relevant pleadings, I am satisfied on the on the balance of probabilities, by having regard to the terms of the Deed itself, that at least one of its purposes was to effect an adjustment of property rights other than through the processes of the Family Court.
2. However, I am respectfully not persuaded that Bate v Priestley can on that basis be distinguished in the manner undertaken by the West Australian Court of Appeal in Sewell v Wilson - at least on the facts of the present case. In my opinion Bate v Priestley, until overruled in the High Court, continues in this State to stand for the proposition that parties to a marriage can, between themselves, and in respect of property adjustment issues, agree to provide remedies at common law outside those available under the Act. To agree to have such remedies does not purport to exclude the jurisdiction of the Family Court. If either party regularly invoked the jurisdiction of that court, it would be a matter for it to decide what effect or weight ought to be given to the Deed; and whether principles of estoppel (ANSHUN or otherwise) arose.

Decision:

1. In my opinion, therefore, this court does have jurisdiction to entertain the claim which relates to the Deed. In other words, the Wife has shown cause as to why the proceedings should not be struck out.

Consequential Issues:

1. The parties have not been heard on the question of costs in relation to the show cause hearing. Ordinarily costs follow the event. In the present case, however, the jurisdictional question underlying the show cause hearing was not (initially at least) raised by the Husband or the Husband's brother (although they ultimately did join issue through a pro-bono referral). In the circumstances, and subject to any contrary submissions, I am presently minded to order that the costs of the show cause hearing be costs in the cause.
2. This leaves for determination the other issues raised by the Wife's Notice of Motion - and which may continue to raise the problem adverted to in paragraph 20 above.
3. Again subject to any submission to the contrary, I regard myself as part-heard for the further determination of the issues remaining to be decided in connection with the Notice of Motion.

Orders, Directions and Notations:

1. I make the following orders, directions and notations: 1. ORDER that this court has jurisdiction to determine so much of the Statement of Claim which seeks to enforce the Deed made on 8 September 2011. 2. DIRECT that the plaintiff's Notice of Motion filed on 23 May 2014 be listed for mention before Colefax SC DCJ on 30 January 2015 at 2 p.m. at the Downing Centre, Court G.1 to fix a further hearing date for the Notice of Motion. 3. NOTE that the question of the costs of the show cause hearing on 19 September 2014 and today will be finally determined at the resumed hearing of the plaintiff's Notice of Motion. DATED: 23 January 2015 Judge Colefax SC

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: 09 February 2015