Wilkes v Bykowski

Consideration

It seems perfectly clear that something must have been said to the Registrar by one or both of the parties at the conciliation conference for her to have written that the Supreme Court proceedings were to be stayed. Given the circumstances in which that document was written and that the parties were not asked if they agreed with what had been written on it there is some chance that there has been some miscommunication between the parties on the one hand and the Registrar on the other. Other evidence suggests that this might be so.
First, on 2 December 2015, two days before the Defendant's Notice of Motion to transfer the proceedings to the Family Court was due to be heard in this Court, the solicitors for the Plaintiff wrote to the Defendant's solicitors saying: We are instructed to consent to the adjournment of your client's Notice of Motion until such time as the threshold issue of whether or not there was a de facto relationship has been decided in the Family Court of Australia subject to the Family Court granting expedition of our client's Application which we will file within the next 7 days. We are extremely concerned that if expedition is not granted then a hearing date relating to the threshold issue is unlikely to be given within the next 12 months. The letter attached proposed consent orders. Those consent orders provided this: 1. The Defendant's Notice of Motion filed on 19 August 2015 together with the Plaintiff's Statement of Claim filed on 2 July 2015 be stood over to 1 April 2016 for directions before the Registrar. 2. Leave is granted to either party to approach the Registrar to relist on 7 days' notice. Those orders were made by consent by Adams J on 4 December 2015.
It can be observed from that letter and the consent orders that there was no agreement to stay the proceedings in this Court but merely to adjourn the proceedings together with the Defendant's Notice of Motion to 1 April 2016. Further, any adjournment was to be until the threshold issue was decided. It was hoped that the threshold issue would have been expedited and, perhaps, dealt with before that time. In fact, as the parties agree, the Registrar appears to have made an order that the threshold issue be expedited. It is not apparent to me from an examination of s 37A where the Registrar's power to expedite the proceedings is derived but the parties appeared to accept that the Registrar had the power.
Secondly, of some, but not determinative, significance is the content of the reasonably detailed report of Ms Angela Petrie, the Plaintiff's counsel, of the conciliation conference on 21 March 2016. It contains no mention whatever of any proposal put forward or any agreement reached about staying the present proceedings. In the light of the evidence of Ms Nixon that no instructions were given to Ms Petrie to seek a stay, if Ms Petrie has sought one I would have expected it to be mentioned in the letter. Seeking such a stay would have been within the ambit of her retainer and implied authority notwithstanding an absence of express instructions: Harvey v Phillips (1956) 95 CLR 235 at 243.
Associated with this second matter is the rhetorical question put in submissions by counsel for the Plaintiff; why would the Plaintiff (or those acting on her behalf) have proposed a stay in circumstances where the Plaintiff had been out of her house for (then) 14 months and the Defendant was residing there paying no rent or occupation fee. That matter may not carry great weight in the light of the offer by the Plaintiff in the letter of 2 December 2015.
Thirdly, the subsequent history of these proceedings and the Defendant's approach to them are relevant. To determine whether a contract was formed and what its terms are, both pre-contractual and post-contractual conduct may be considered: County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193 at [8] - [17].
On 29 March 2016, a week after the conference, the Defendant's solicitor sent an email to the Plaintiff's solicitor saying (inter alia): We note that this matter is set down for mention at the Supreme Court on 1 April. We note that the threshold issue of whether or not there was a de facto relationship has not been decided in the Family Court as yet and we therefore propose that the Supreme Court matter be relisted (scil. not be relisted) until such time as the same has been decided. (emphasis added)
On 1 April 2016 when the present proceedings returned before the Registrar both the proceedings and the Defendant's Notice of Motion were stood over to 21 October 2016 with liberty to relist on seven days' notice. On 17 October 2016, as noted earlier, the Plaintiff's solicitor wrote to the Defendant's solicitor saying that the Plaintiff was intending to file a motion seeking summary judgment.
The Plaintiff filed her Notice of Motion for summary judgment on 20 October. When the matter came before the Court on 21 October the Registrar made the following orders which were agreed between the parties:
The parties are to file and serve any further evidence in relation to the Defendant's Notice of Motion filed on 19 August 2015 and the Plaintiff's Notice of Motion filed on 20 October 2016 (together, the Applications) by 4 November 2016.
The Applications are listed for hearing on 24/11/16.
The applicant in each of the Applications is to serve an outline of submissions in relation to his/her application 7 days prior to the hearing of the Applications, that is by 17/11/16.
The respondent in each of the Applications is to serve an outline of submissions in response 3 days prior to the hearing of the Applications, that is by 21/11/16.
Although both Motions were fixed for hearing before me, the Defendant as late as 21 November 2016 when he served his written submissions gave notice that he would not be proceedings with his Motion to transfer the proceedings. That decision appears to be related to the raising by the Defendant for the first time in his affidavit of 19 November 2016 of the notations by the Registrar in the Listing Directions document.
At no time did the Defendant take any steps in this Court to stay the proceedings pursuant to what was said to be the agreement of the parties to do so. The email of 29 March did not mention a stay. Rather, the Defendant's solicitor "proposed" a re-listing at a future time. In particular on 1 April 2016 there was an agreement to stand the proceedings over to 21 October 2016.
On 21 October the Defendant did not suggest that the Plaintiff should not have filed her Notice of Motion for summary judgment nor that directions should not be made for the hearing of that Motion because the parties had agreed to stay the Supreme Court proceedings. More particularly, the making of directions by the Registrar for the hearing of the Defendant's Notice of Motion was entirely inconsistent with any suggestion that the Supreme Court proceedings were stayed. If they were stayed, there would simply be no need for a hearing of the Defendant's Notice of Motion because the parties would be awaiting the hearing of the expedited application in the Family Court for the determination of the threshold issue. If that issue was decided against the Defendant the Family Court would have no jurisdiction to make any order in relation to the Lane Cove property. The result would be, if the Defendant's Motion had been determined in this Court in a manner that resulted in the transfer of the proceedings to the Family Court, that such failure by the Defendant in the Family Court would necessarily require re-transfer of the proceedings to this Court.
In any event, what was proposed by the Plaintiff's solicitors on 2 December 2015, and consented to by the Defendant's solicitors, was merely the adjournment of the present proceedings on a particular basis. That basis clearly anticipated the threshold issue in the Family Court being determined in a relatively prompt fashion.
Fourthly, it seems clear that what the Registrar was noting relevant to the order for expedition on the threshold issue was that the proceedings in this Court "were", not "were to be", stayed pending that determination. That is, the Registrar was noting, perhaps a little inaccurately on two levels, that the parties had agreed that the Supreme Court proceedings were not to progress until the threshold issue had been determined by reason of the proceedings having been adjourned to a later date.
The first inaccuracy was the suggestion that the parties agreed that the Supreme Court proceedings were stayed. The Defendant's evidence does not extend as far as an agreement. Since the Defendant says merely that he did not oppose the orders proposed by counsel for the Plaintiff, there was no agreement, just no opposition. This is not just semantics, as the Defendant submitted. In the absence of agreement the Registrar had no power to make an order that the Supreme Court proceedings were stayed. Even with an agreement it was not an order enforceable against this Court. At best, with an agreement, it might be thought to be an order restraining the parties in that regard and one that might give rise to an estoppel against a party seeking to progress the present proceedings.
Secondly, the Registrar referred to the "determination of FCA proceedings" when the highest any agreement went (if there was one) was the determination of the threshold issue and not the whole of the Family Court proceedings.
Even ignoring the surrounding circumstances, the evidence of what happened at the conciliation conference make it likely that, at best, what the Registrar wrote was a notation of the Registrar's understanding of what was said to her. For the reasons given, it was not accurate.
When the surrounding circumstances are added, I am entirely satisfied that there was no agreement that these proceedings were or were to be stayed, and that what appears in the Registrar's writing in section 47 of the Listing Directions document was not an order inasmuch as it refers to the Supreme Court proceedings. There is nothing in the evidence to suggest that, prior to his affidavit of 19 November 2016, the Defendant believed that there was an agreement to stay the proceedings.
Nor is the conclusion that there was no such agreement inconsistent with the acceptance by the parties that the order for expedition was made as a result of the notation to that effect in the same part of the document. Even if the words "Threshold issue to be expedited" are the making of the order rather than (as they appear) a statement of intention in that regard, what thereafter follows ("where respondent asserts there is no de facto relationship is aged 76 and ill health, and is homeless having moved out of the home to which she has legal titile") is entirely surplusage and does not form part of that order. That strengthens my view that the subsequent reference to the Supreme Court proceedings is a notation only.
The Plaintiff submitted, in any event, that there was a distinction to be made between a consent order which was based on a true contract between the parties and a consent order that was made on the basis of a proposal by one side with the other side not objecting. Reference was made to Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185; [1982] 1 All ER 377 at 380 where Lord Denning MR (Eveleigh and Templeman LJJ agreeing) said: We have had a discussion about 'consent orders'. It should be clearly understood by the profession that, when an order is expressed to be made 'by consent', it is ambiguous. There are two meanings to the words 'by consent'. That was observed by Lord Greene MR in Chandless-Chandless v Nicholson [1942] 2 All ER 315 at 317, [1942] 2, KB 321 at 324. One meaning is this: the words 'by consent' may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words 'by consent' may mean 'the parties hereto not objecting'. In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties. In every case it is necessary to discover which meaning is used. Does the order evidence a real contract between the parties? Or does it only evidence an order made without obligation?
This has been seemingly approved in the New South Wales Court of Appeal in Paino v Hofbauer (1988) 13 NSWLR 193 at 200 and in the High Court in Harris v Caladine (1991) 172 CLR 84 at 104.
The Plaintiff points to the Defendant's evidence at the highest which is, not that there was a contractual agreement, but that the Defendant simply did not oppose what was put forward by counsel for the Plaintiff before the Family Court Registrar. Accordingly, the Plaintiff submits, there was no real contract between the parties and the order (if it was one), therefore, was more readily able to be set aside.
Whilst that may be true it does not seem to me to avail the Plaintiff anything because the Plaintiff has taken no steps to set aside the consent order, if that is what the Registrar's notation is. The argument may be a good one to justify having that order set aside but that has not happened.
However, that matter has no significance because, for the reasons earlier given, I am not satisfied that there was any agreement between the parties to stay the present proceedings. I do not consider that what the Registrar wrote about the Supreme Court proceedings being stayed was an order. There is, accordingly, no defence to the Plaintiff's claim for summary judgment based upon that asserted agreement.
The other basis upon which it was suggested that a defence is shown to the Plaintiff's claim for possession is that there are proceedings in the Family Court on the basis that the parties were in a de facto relationship. The Defendant seeks a variation of property rights in the Family Court. The Defendant submitted that the usual position would be that the party who was in the house would have exclusive possession of it and an interim order could be sought in the Family Court seeking exclusive possession.
Submissions were also made in relation to the approach of the Family Court when determining the pool of assets for division between the parties. That was said to be done at the date of the order of the Court.
The timing of determination of the pool of assets to be divided does not seem to me to provide any defence to a claim for possession by a registered proprietor. At best it could be argued in support of a stay either of execution of an order for possession or as a condition attached to such writ of possession relating to sale of the property.
In Holder v Zeiher [2014] NSWSC 556 the Plaintiff resided in a property legally owned by the Defendant and he lived elsewhere. He sought possession of the property. There was an issue about whether the Plaintiff and the Defendant had been in a de facto relationship. The Plaintiff resisted possession on the basis that she wished to establish that there had been a de facto relationship in the Family Court. I said: [42] The Plaintiff establishes that he is the legal owner of the property and is entitled to possession of it. The Defendant's evidence is contradictory about whether there was a de facto relationship. The two significant matters suggesting that there was not such a relationship are the Defendant's joining in the assertion in the Family Court that there was no such relationship and her sworn testimony in that Court that there was no genuine relationship. [43] Whether or not there was such a relationship, there is no evidence at all that the property was bought for her solely nor evidence that she is entitled to possession of the property to the exclusion of the Plaintiff. Even if she is entitled to a share in the proceeds of the sale of the property as a result of amounts paid towards the mortgage (as her caveat suggests) or because a de facto relationship existed, that is not an entitlement to possession against the registered proprietor. [44] Demonstrating that there was a de facto relationship does not disclose a reasonable defence to the claim for possession. Her Defence should be struck out and judgment given for possession to the Plaintiff.
Whilst I accept the present Defendant's submission that the position in Holder v Zeiher was not entirely analogous to the present because of the matters referred to at [42] of that judgment, a mere demonstration that there was a de facto relationship between the parties would not preclude an order for possession in this Court where there was no evidence, as here and in Holder, that the registered proprietor had bought the property for the exclusive possession of the other party. The position is stronger in the present case because both parties agree that the property should be sold and the Defendant accepts that the Plaintiff should be entitled to 55% of the proceeds of sale.
Accordingly, the second basis put forward by the Defendant for resisting an order for possession does not provide a defence to such a claim.
As far as the question of the Registrar's notation about a stay of the present proceedings is concerned, I bear in mind the various ways the test is expressed in General Steel Industries for granting summary judgment. Whether what was written by the Registrar constitutes an order is a matter of construction and/or law. The matter has been fully argued on the present application. In General Steel Industries Barwick CJ said (at 130): On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.
In my opinion, the Defendant has no arguable defence to the claim for possession.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)