M v W[2009] QDC 55

DISTRICT COURT OF QUEENSLAND

1. The plaintiff and the defendant lived in a de facto relationship from June 1994 to December 1997.^[1] They were born on 6 May 1937 and 11 April 1937 respectively.  The plaintiff alleges that during that time he contributed both in a financial and non-financial manner to the acquisition of property and assets held by both parties together and individually.

2. An action was commenced on 21 October 2004.  There have been various orders made by this court and with which the defendant has failed to comply.  These orders relate mainly to discovery.^[2]    The order of 14 November was as follows:

1. Leave to read and file affidavit of Andrew Mark Raeburn sworn 14/11/08.

2.  Order that the respondent disclose to the applicant those documents identified at paragraph 1 (a) to (d) [of Application] within 28 days.

3.  That in default of compliance with order No 2, pursuant to rule 225(2)(b) of the UCPR there be judgment for the plaintiff in the proceedings in the following terms:

1. That the defendant pay to the plaintiff the sum of $200,000; and
2. Subject to that payment, that all other property, whether real or personal, vested or contingent, and howsoever held by each other parties, be retained by that party to the exclusion of the other.

4.  Order that the Respondent pay the Applicant’s costs of today’s application on the standard basis.

3. Unfortunately, order (3) above was not indorsed on the file.  When the application came on before her honour Judge O'Sullivan on 24 December 2008, her honour was not able to proceed to deal with the matter in the absence of details of the order.  On that occasion the plaintiff was seeking judgment.  The order had not been taken out even though it was sworn to in the affidavit of Mr Cooper.^[3]  The matter came on for mention before me on 23 January 2009 and the endorsement was corrected.  The defendant was represented by Mr Gordon.  The defendant was represented on 14 November 2008 when the guillotine order was made.   On 23 January, the parties made limited oral submissions and were given leave to deliver written submissions.^[4] 

4. When the matter came on before Judge O'Sullivan, the defendant was given leave to file an affidavit deposing to the fact that she had substantially complied with her duty of disclosure.  The plaintiff maintains that it is partial compliance in any event. 

Defendant’s submissions

No step for two years

5. It is submitted that no step had been taken for two years, presumably, prior to the first application before Judge Noud. No specific time period is put in the submissions.  This point has no validity as the point was not taken at the time and so can be considered a mere irregularity.^[5] It certainly is of no consequence in relation to the guillotine order as other orders had been made in the previous five months. 

Re-visiting the guillotine order

6. It is submitted that the order was not taken out or perfected and that is a relevant factor.  A court has power to revisit its original orders.^[6]   More specifically, a court has power to extend the time limit of a guillotine order whether before or after the expiration of the order, particularly when the order has not been perfected. A broad discretion exists.^[7] His honour was dealing with a rule which allowed the court to extend or abridge time.  His honour stated.

 It is a remedial provision which confers on a court a broad power to relieve against injustice.  The discretion so conferred is not readily to be limited by judicial fiat.  The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case.

7. A similar rules exists under the UCPR viz.rule 7 which provides:

1. (1)
   The court may, at any time, extend a time set under these rules or by order.

It has been submitted by the defendant^[8] that the court is able to extend the period for compliance.   The plaintiff contends that there is no application before the court. In a formal sense that is correct, but for present purposes it has been argued and so a court can so order if justified, absent an application being filed. 

Property Law Act Part 19 (de facto relationships)

8. Counsel for the defendant submitted that a court must be satisfied that prior to making an order under those provisions that it is just and equitable to do so.  The decisions of CL v JMG^[9] and HAG v MAW^[10]  are referred to. The plaintiff contends that judgment was given under rule 225(2)(b) of the UCPR and that the provisions of the Property Law Act are not relevant.  They are relevant when one has to assess quantum.  The factors to be taken into account are set out in that Act^[11]   Liability may be established by the judgment but an assessment is required.  In the present case a sum of $200,000.00 was sought in the pleadings.  There was no affidavit material before the court to allow an assessment of that sum.  A court has power under s 333(1)(d) of the Property Law Act to order payment of a lump sum.  It would be fair to say that such a claim is unliquidated.^[12] The learned authors state.^[13]

  Generally, a claim is liquidated when the monetary sum representing the claim is ascertained or capable of being ascertained by calculation being the use of a formulae, rather than being ascertainable only by an assessment which involves the exercise of a discretion and/or opinion.

9. It is similar to an assessment of a claim for equitable damages under a statutory provision where the court assesses the quantum.^[14]  The damages were not agreed               by the parties in the event of a separation and so unliquidated.^[15]  The quantum can               only be assessed by taking into account the factors provided for under the Property               Law Act. A court is empowered to direct the method of assessment. For               example, on an application for summary judgment, a court has power to direct the               method of proving the claim.^[16] The non-financial contributions are difficult               to quantify in any event.^[17] This is another factor to be taken into account in               extending the time in which to comply with this order as the damages will               have to               be assessed. Although the defendant was represented on the 14 November 2008,               this aspect was not explored by the parties. The order was not appealed nor was               there an application to set aside the order.^[18]

Non compliance with Practice Direction No 5 of 2004

10. This Practice Direction deals with the type of relief sought in the present case. It requires that after the close of proceedings that an application for directions be made. The pleadings closed on 31 May 2005 when the reply was filed. This is another matter to be taken into account it is submitted. The defendant did not seek to rely on the irregularity at an earlier stage and so it does not assist her greatly. However, it is something to have regard to if this matter were to be heard as a trial on the issue of damages.

Relevance of UCPR Rule 668

11. Rule 668(1)(a)  becomes relevant if after an order is made, facts arise “entitling the person against whom the order is made to be relieved from it.” The rule was discussed by Wilson J in Mango Boulevard Pty Ltd v Spencer^[19]  Her honour commented that:

This is an application to relieve against the consequences of non-compliance with a self-executing order.  Two months passed between the making of that order and the hearing of the application.  Compliance was still incomplete, and the explanations relied upon were, as counsel for the plaintiff submitted, quite lame.  Whether the application be considered as one to extend time under r 7 or one under r 668, the same factors inform the exercise of the discretion.  The first and second defendants’ response to the self-executing order has been such as to put the fairness of a trial in jeopardy.  I decline to extend time for compliance with the self-executing order, or to vary it in any respect. 

12. The factors which are relevant in the present case are as follows:

1. The time in which to comply with the guillotine order expired on 12 December 2008.  Some days before 14 November, the solicitors for the defendant took steps to obtain some information from two banks.^[20] 
2. Other information was provided in relation to other transactions^[21] This was further evidence of the defendant’s attempts to comply with the order.  It is noted that that information predated the application for the guillotine order save for the details of the Variable Rate Investment Property Loan^[22] and the letter from her financial adviser Mr Stringer.^[23].  The further discovery does not sit comfortably with the contents of the affidavit filed by the defendant on 16 October 2008 whereby she swore that she had complied wit her obligations and was not aware of any further requests by the plaintiff.^[24]

13. The defendant has acted in a contumelious manner in this case.  She is now 71 years of age.  There have been numerous property transactions, and one can               understand the difficulty of obtaining information from various sources.  However,               attempts by her to comply with orders in the past and the present guillotine order               have been half hearted, verging on contemptuous.  It is therefore not appropriate to               extend the time.  However, even if judgment be entered, there will need to be an               assessment of the damages claimed of up to $200,000.00. A party may obtain a               judgement conditional on the assessment of damages where unliquidated damages               are claimed^[25]  In the present case a similar situation applies for non-compliance of               an order.^[26] In the present case the defendant will not be entitled to challenge               liability but may contest the quantum of damages. The assessment will be               conducted as a trial.^[27]

14. Both parties are in the twilight of their lives.  A full hearing of this matter would take some days.  If the defendant has not made full disclosure, then the trial judge has power to order that she pay the costs of the action.^[28].  The defendant has made substantial disclosure but it is difficult to say that at this point whether it is so incomplete that a just and equitable result at trial could not be achieved.  As is contended by the defendant, not all documents in the possession of a third party are required to be discovered.^[29] Those documents in the power of the defendant ought to be discovered, not those personal to the agent and prepared for their own purposes. The matter should proceed to a hearing of the assessment of damages upon the plaintiff complying with the requisite Practice Direction^[30] in so far as it is now applicable.  Before another step is taken in the action, the parties ought to mediate the case if this has not occurred.

Order:

1.               The application to extend the time to comply with the order of 14 November               2008 is refused.
2.               Judgment is given for the plaintiff conditional on the assessment of damages.
3.               It is ordered that the parties comply with Practice Direction No 5 of 2004 in so               far as it is now applicable and in particular that a mediation take place in the               event that there has been no mediation to date.
4.               It is ordered that damages be assessed by the District Court at Brisbane in  accordance with the provisions of the Property Law Act 1974 Division 4               Subdivision 3.

5.               It is further ordered that the defendant do pay the costs of and incidental to               this application including any reserved costs to be assessed or agreed.