Rigby v Rigby [2016] NSWSC 241 | Case summary

Rigby v Rigby [2016] NSWSC 241 | Case summary | Zoe

Judgment

The Plaintiff seeks summary judgment on a Statement of Claim seeking possession of a property known as 695 Freemans Drive, Cooranbong. The Plaintiff is the owner of the property. The Defendant is the Plaintiff's former wife.
The Statement of Claim pleads his ownership of the land. It pleads that from about 13 October 2013 the Defendant took up residence in the house on the property. The Plaintiff pleaded that at no time did he grant a tenancy or any right to the Defendant to occupy the property and that her entry into the property was a trespass as is her continued occupation of it.
At the hearing of the Notice of Motion the Defendant was not legally represented. However, since the proceedings commenced on 13 July 2015 she has had some legal assistance. A Defence filed on 31 August 2015 contained the name of a solicitor, Roderick William John Hale, as the Plaintiff's legal representative.
The Defence pleaded that the property was the matrimonial home of the Plaintiff and the Defendant from their marriage in 1989 until the parties divorced in 2013. The Defence pleaded that between 1989 and 1994 the Plaintiff's father was the sole registered proprietor of the property until his death in or about 1994. At that time it was inherited by the Plaintiff (the Defence says "inherited by the Defendant" but that must be a mistake) in equal shares as tenants in common with the Plaintiff's sister. At some time after 1998 it is pleaded that the Plaintiff acquired his sister's share. The Defence pleaded that the Defendant had resided in the property from 1989 until 1998 and then again from 2009 to the present time.
Paragraph 4 of the Defence is the significant one. It first denied the allegation in the Statement of Claim that the Defendant had occupied the property since 13 October 2013 without the consent of the Plaintiff. It then went on to say this: The Defendant made oral promises that the Plaintiff would reside in the presently existing improvements upon the property if the Defendant did not pursue her rights pursuant to the Family Law Act 1975 and then also to build of a free standing "granny flat" on the property in which the Defendant would then have tenancy for life. (sic)
On 11 September 2015 the Defendant filed a Cross-Claim. Although Mr Hale is not said to be her legal representative he in fact witnessed her signature in the affidavit verifying the Cross-Claim. The Cross-Claim has quite obviously been drafted by or with the assistance of a lawyer.
It seeks a declaration that "the defendant" holds a one third interest in the property on a constructive trust for the cross-claimant. (The reference to "the defendant" must have been intended to read "cross-defendant".) It seeks a further declaration that the cross-claimant is entitled to an equitable charge over the property or the proceeds of sale of the property in such an amount as is just and equitable having regard to the cross-claimant's contributions to the acquisition, maintenance and improvement of the property. It seeks an order that the cross-defendant pay to the cross-claimant an amount equivalent to one third of the assessed market value of the property.
The pleading in the Cross-Claim, in effect, supplemented the pleading in the Defence. It made reference to the way the property devolved upon the Plaintiff and pleaded that from 1989 to 1998 the parties resided in the property which was their matrimonial home. It asserted that the cross-claimant made significant contributions to the property and to the welfare of the Plaintiff and the children of the parties.
It pleaded that the parties separated in 1998 and at that time the property was rented to tenants. It pleaded that in late 2009 the Defendant reoccupied the property after the tenants had left it in a poor condition. It pleaded that the Defendant attended to substantial repairs and maintenance on the property. It pleaded that the parties were divorced on 14 June 2013.
Paragraph 9 then pleaded: [9] Subsequently, the cross-defendant made representations to the cross-claimant that, if the cross-claimant did not seek a division of the martial (sic) property pursuant to the provisions of the Family Law Act (Cth) 1975, a 'granny flat' would be built on the land situate at and known as 695 Freemans Drive, Cooranbong, in which the cross-claimant would have a life tenancy. [10] In reliance upon the cross-defendant's representations, the cross-claimant refrained from seeking the assistance from the Family Court and is now statute barred.
The Defence to the Cross-Claim answered the last two paragraphs set out from the cross-claim by saying that the Family Court made orders in June 2003 following terms of settlement entered into between the Plaintiff and the Defendant. The Defence to the Cross-Claim went on to say that in about 2009 without his consent the cross-claimant parked a campervan on the property and lived in that campervan. When he was overseas in 2013 the cross-claimant moved into the house without his consent and although he has made a number of requests for her to leave she has not done so.
The Plaintiff swore an affidavit in support of the Motion. He said that after the breakdown of their marriage in 1998 the parties negotiated a property settlement with the assistance of lawyers. He said he was represented by Wood Roberts Lawyers and the Defendant was represented by Armstrong Solicitors.
The Plaintiff annexed to his affidavit Terms of Settlement dated 17 April 2003 which appear to have the signatures of the Plaintiff and the Defendant on the document. In each case the signature of the Plaintiff and the Defendant is witnessed by a solicitor. The matter came before the Registrar of the Family Court in June 2003. The order reads: UPON APPLICATION made to the Court this day IT IS ORDERED: 1. That by consent orders, declaration and notations be made in terms of the document titled "Terms of Settlement" dated filed herein and attached hereto. The Terms of Settlement were attached to the order.
The Plaintiff also annexed to his affidavit copies of correspondence forwarded on behalf of Armstrong Solicitors prior to the settlement being reached. One of those letters in particular set out the claim that the Defendant was making for work and financial contributions she had made to the property culminating in the claim she was making to be paid.
The Terms of Settlement ultimately provided for the Plaintiff to pay to the solicitors for the wife for and on her behalf the sum of $40,000. The terms of settlement went on to say: 2. That upon payment of such amount that as between the parties the Husband be declared solely entitled to property situated at:- … 2.3 Any Interest he may have in property he may have at 695 Freemans Drive, Cooranbong.
The affidavit annexed copies of two cheques, one for $2,137.49 payable to Armstrong Partners and Solicitors and another for $36,862.51 payable to Susan White (the Defendant by her maiden name). The affidavit of the Plaintiff said that he paid the outstanding $1,000.00 by way of cash to the Defendant in around June 2003.
The affidavit reiterated what appeared in the Defence to the Cross-Claim, namely, that in about 2009 the Defendant parked a campervan on the property and lived in the campervan. The Plaintiff said that he gave his consent for the Defendant to park the campervan on the property for a short period of time to conduct some repairs. After around three months he said that he asked the Defendant to leave but she did not do so.
The Plaintiff said further that in around 2013 he went overseas for a work related trip. On his return the Defendant had moved into the house on the property without his consent. He said that he had made a number of requests for her to leave but she had not done so.
He also said this: [20] I am aware from the contents of the statement of cross claim that the defendant claims to have conducted repairs and maintenance to the property after moving back in without my consent. I do not know whether any such works were performed and, if so, to what extent. However, I have not requested the defendant to make any such repairs or to maintain the property and I have not provided consent for her to undertake them.
The Defendant relied at the hearing of the Motion on an affidavit sworn by her on 1 March 2016 and on two statutory declarations sworn by her on 10 February 2016 and 2 March 2016. The Defendant also sought to tender a psychiatric report in relation to herself dated 24 November 2015. That report was objected to on the grounds of relevance and I rejected its tender. However, in her statutory declaration of 10 February 2016, to which no objection was taken, the Defendant swore that she has many mental health issues being underlying Dysthymia, Post Traumatic Stress Disorder as well as anxiety and depression.
The matters set out in the statutory declarations and the affidavit together with what the Defendant told me at the hearing of the Notice of Motion contained a number of inconsistencies. She said that in 2003 her husband persuaded her to sign a legal document by telling her that she had no claim on the property any longer because he did not own the property and it belonged to his sister. She said that she did not understand the repercussions of her actions.
In paragraph 3 of her affidavit the Defendant said this: At the time of property settlement, I deferred legal advice as Paul Rigby [the Plaintiff] said it could be worked out amicably, so I didn't go ahead with legal representation. The Asset had been hidden, there was no Family Court attendences [sic] or proceedings to my knowledge, and $40,000 monies paid to me were reimbursement of monies owed to me for: my share of our block of land in town at Gloucester, which was in both names. $10,000 reimbursement for a loan I had paid in my name for a motorcycle which he kept 13 head of cattle which belonged to me which he sold without my permission household furniture and a L300 Mitsubishi Van which he kept.
In her statutory declaration of 2 March 2013 the Defendant said that at no time was a settlement agreed concerning the property in 2003. She said that she believes the signature on page 3 of the terms of settlement was not hers and at no time did the Plaintiff pay the amount of $1000 to her as he asserted.
At a Directions Hearing on 17 February 2016 the Defendant said this: I had legal aid were helping me, and then a property settlement of something I signed back in 2003 turned up, so they just said they couldn't represent me anymore because of this signature in 2003, the settlement. HIS HONOUR: The Family Court orders, you mean? DEFENDANT: Yeah. I'm not really - from what I understood it to be, it's totally different. HIS HONOUR: Sorry, you understood what to be totally different, the orders that were made by the Family Court? DEFENDANT: Yes. The house that I'm living in is the property that is in question. I didn't realise that I signed…. I - he - we - it was - in my mind it was reimbursement for money that he owed me. Signing this - I don't remember - recall signing it. I've signed it in S White, and I've been a Rigby since 92. I just misunderstood the whole settlement. Then we were divorced in 2013, and no problem has come up at all until early - the 12 months were up for the divorce in April - that all these problems started, that he wanted me to move out. Then he said - we talked about an alternative accommodation for me, and we've got gathered materials, like just second hand materials, to build - like, start off with a shed, so I can have a workshop, and he could have the house, because it's uncomfortable. Now he's saying he hasn't done - said any of that.
In her oral submissions the Defendant also denied that she had legal representation after the separation with her husband and did not pursue her legal rights. When I pointed out to her that the correspondence showed that she had Armstrongs acting for her she then said that she did not understand the consequences of what was happening and that they did not explain it to her.
Her denial that the Plaintiff did not pay her the further $1000 (over and above the value of the cheques) is inconsistent with her statement in her affidavit that $40,000 was paid to her. Further, on the face of it, the $40,000 was not referable to the matters that the Defendant has set out in paragraph 3 of her affidavit ([22] above) but, on the correspondence attached to the Plaintiff's affidavit, appears to have been based on claims made in the letter from Armstrongs to the Plaintiff's solicitors dated 5 July 2002 and was chiefly related to contributions set out in that letter said to have been made by the Defendant during the marriage.
I note also that the Defendant claims only that the signature on page 3 of the Terms of Settlement is not hers and says nothing about her signature elsewhere in the Terms of Settlement. I note also that the signature on page 3 purports to have been witnessed by a solicitor and appears to be the signature of Linda Hackney from Armstrongs who was acting for the Defendant.
The principles associated with summary judgment applications are well known. The power to enter summary judgment should be exercised with great care and an order pursuant to r 13.1 Uniform Civil Procedure Rules 2005 (NSW) should only be made where it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118. Further, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded: Spencer at [23]; O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3].
In terms of the pleading in the Defence and the Cross-Claim, no defence to the claim is identified, nor is any cause of action demonstrated in the Cross-Claim. Both pleadings contain an assumption that has been shown to be incorrect, that is, that there was no family law settlement after the breakdown of the marriage. Both pleadings make reference to representations or promises on the basis that the Defendant would not pursue rights under the Family Law Act 1975 (Cth). The evidence clearly establishes that orders were made by the Family Court on the basis of a settlement that had been agreed between the parties. The Defendant impliedly acknowledges that that is so because she accepts that the sum of $40,000 (in her affidavit) or $39,000 (by reference to her statutory declaration) was paid to her by the Plaintiff. Moreover, the claim made in the pleadings for work carried out and money expended by the Defendant was also claimed on the basis that there was no family law settlement. The evidence in fact shows that it was the claim for work carried out and money expended that resulted in the settlement that led to the Defendant being paid the $40,000.
Bearing in mind, however, that the Defendant has not been legally represented at all times and was not represented at the hearing of the Motion, and having regard to what was said in both Spencer at [23] and O'Brien at [3] that the real issue is whether there is an underlying defence, it is necessary to look at all of the Defendant's evidence in her affidavit and the two statutory declarations to which I have made reference.
What emerges from that material is that, subsequent to the orders of the Family Court and the payment of the $40,000 by the Plaintiff to the Defendant, the Defendant moved back onto the land with the consent of the Plaintiff for a short period of time, but thereafter and without the Plaintiff's consent the Defendant occupied the house on the property and has, despite requests to leave, refused to do so.
The Defendant's evidence about what has happened since she moved back into the property is to be found first in paragraph 22 of her affidavit where she said this: April 2014 discussions at length were had between me and Paul Rigby regarding the existing second hand materials and the erection of a granny flat for me to live in on the property. I have witnesses to this fact, family and friends. There is no earlier reference in her affidavit to "the existing second hand materials" and that reference is not understood but the important matter is the reference to the erection of the granny flat.
In her statutory declaration of 10 February 2016 the Defendant says: In April 2014, two mths before divorce he and myself discussed and planned to build a granny flat on our subdividable land size 2,425 sq mtrs, - to be extended behind our existing shed. I relied and believed that I was to occupy my own space on the property for life.
In her oral submissions the Defendant kept referring to these discussions as a verbal agreement with the Plaintiff. The evidence, however, does not demonstrate that there was any such agreement, only that there may have been discussions. There is no evidence that the Plaintiff informed the Defendant that she would be entitled to remain living at the property whether in a granny flat or otherwise.
Even if the evidence should be liberally interpreted to demonstrate that such a representation or promise was made on the Plaintiff's part, there is nothing to indicate any consideration for the promise or representation, nor that the Defendant relied in any way that would give rise to an estoppel that would prevent the Plaintiff from seeking possession of the land. To the extent that the promise was of an interest in the land there was no writing: s 23C Conveyancing Act 1919 (NSW). At the highest, and accepting that the Defendant's belief was based on a representation or promise although none is set out, that would not entitle her to other than a licence to occupy terminable by the Plaintiff on reasonable notice. It is clear that such notice has been given.
It is apparent from a reading of the affidavits and statutory declarations relied upon by both the Plaintiff and the Defendant that there are disputed questions of fact between the parties. It is not appropriate for me to decide disputed questions of fact on a summary judgment application and I have not done so. I have, however, accepted the incontrovertible evidence that there was a settlement reached in the Family Court which was translated into orders of that Court, and that the Defendant had solicitors acting for her in that process and at the time of settlement. Although the Defendant wishes to deny that her signature appears in one place on the Terms of Settlement, that is not a matter I can go behind. The Family Court of Australia accepted the Terms of Settlement and made orders on the basis of those terms. If the Defendant wishes to impugn the settlement on the basis that her signature was forged she would have to make application to the Family Court.
The impression I have is that the Defendant is confused about what happened in 2002 and subsequently. What seems likely to have been her belief when she instructed Mr Hale to draft the Defence and Cross-Claim has now been shown not to be correct from the orders of the Family Court. What she said at the Directions Hearing on 17 February 2016 appears to accept that she was mistaken in her earlier belief. I do not, however, have to make any determination based on acceptance or otherwise of her evidence. The objective material demonstrates that she has no defence.
In my opinion, the Defendant fails to show any defence to the claim for possession whether contained in her pleadings or in her affidavit and statutory declarations upon which she relied.
A faint suggestion was made by the Defendant that she ought to be compensated in some way for monies which she says that she has expended on the land and property since moving to it again in 2009. The Plaintiff denies that there was any arrangement or agreement for the Defendant to have conducted repairs and maintenance to the property. The Defendant leads no evidence to suggest that any work that she might have done, the details of which were not specified, was done with the knowledge of the Plaintiff. In any event, any right to compensation for such works would not amount to a defence to a claim for possession of the property.
One other person apart from the Defendant lives at the property. That person is the son of the Plaintiff and the Defendant, Daniel Rigby. I am satisfied from an affidavit of Mark William John Tully sworn 19 November 2015 that Daniel Rigby has been served with a copy of the Statement of Claim and a Notice to Occupier. The Plaintiff makes specific reference to Daniel in his affidavit and says that Daniel's occupation is not to be disturbed by the order for possession.
The Plaintiff seeks costs from the Defendant. He relies on an affidavit from his solicitor which indicates that costs and disbursements billed to 10 March 2016 were $8,254.35 with the further costs to the conclusion of the Notice of Motion being estimated to $2,700. The Plaintiff's solicitor submitted that the matter would be an appropriate one for a specified gross sum costs order given the small amount that is involved. The Defendant resisted paying costs principally because of her inability to do so and her assertions that her former husband was in a better financial position than she was. The Defendant lives on a disability pension of $840 a fortnight.
The general principle is that a successful party should have his, her or its costs of the proceedings. Although the discretion of the Court to depart from that presumption is unfettered a court ought not to exercise its discretion against a successful party arbitrarily or capriciously or on no grounds at all: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [65].
In deciding whether or not to make a costs order, the ability of a person to pay costs ordered is not a consideration. Nor is the financial position of the person who seeks and is entitled to costs. A costs order is compensatory and not punitive. No conduct on the part of the Plaintiff in these proceedings disentitles him to an order for costs. The Defendant was in law a trespasser. The Plaintiff was obliged to take the proceedings to obtain possession. The Defence and Cross-Claim were misconceived probably because the Defendant was confused about what had taken place in the Family Court in 2002. The filing of those pleadings increased the costs.
I have too little information about the Plaintiff's costs to make a lump sum costs order. The order I will make is that the Defendant is to pay the Plaintiff's costs.
The orders I make are these: 1. Judgment for the Plaintiff for possession of the land in Folio Identifier 2/205542 known as 695 Freemans Drive, Cooranbong in the State of New South Wales; 2. Leave to the Plaintiff to issue a writ of possession; 3. Cross-Claim filed 11 September 2015 is dismissed; 4. The Defendant is to pay the Plaintiff's costs of the proceedings.

Rigby v Rigby

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Judgment (3 paragraphs)

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