Moore v Cureton [2002] NSWCA 188 (19 June 2002)

Last Updated: 28 June 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: MOORE v CURETON [2002] NSWCA 188

FILE NUMBER(S):

41020/01

HEARING DATE(S): 19/06/2002

JUDGMENT DATE: 19/06/2002

PARTIES:

Jason Anthony MOORE v Joanne Nicole CURETON

JUDGMENT OF: Meagher JA Foster AJA Ipp AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 3370/99

LOWER COURT JUDICIAL OFFICER: Gamble DCAJ

COUNSEL:

P. Barham - Appellant

P. Walsh - Respondent

SOLICITORS:

Stoikovitch Banfield - Appellant

Anthony Ziade & Associates - Respondent

CATCHWORDS:

Appeal due to the amount awarded.

LEGISLATION CITED:

Property Relationships Act 1984

District Court Act

DECISION:

1. Leavel to appeal grant.

2. Matter to be remitted for re-hearing only on the cross-claim and only on evidence already led.

3. Costs of application and appeal be awarded to the appellant.

4. Respondent be granted a Certificate under the Suitors Fund Act if she be otherwise entitled.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41020/01

DC 3370/99

MEAGHER JA

FOSTER AJA

IPP AJA

WEDNESDAY, 19 JUNE, 2002

Jason Anthony MOORE v Joanne Nicole CURETON

Judgment

1 MEAGHER JA: Unfortunately, I find myself unable to agree with the decision of Foster AJA. I have no doubt that Acting Judge Gamble fell into error and misconstrued s 17 of the Property Relationships Act 1984. I have no doubt that this failure on her Honour's part led her to fail to consider the claim which the present claimant has made but, nonetheless, despite all those errors I am of the view that the summons should be dismissed with costs.

2 I take this view for two reasons: firstly, because the amount involved sums relevantly to be so trivial. If the claimant Mr Moore obtained everything he really wanted he would be entitled to a verdict of something over $20,000; a victory which would be swallowed up by some costs order. Secondly, because there is no indication in any of the material before us that he was entitled to any verdict at all on his cross-claim, particularly as a large proportion of the amount which he is claiming against Ms Cureton represents sums of money expended on meat and vegetables consumed by the parties and in those circumstances I would dismiss the summons with costs.

3 The orders of the Court are the orders proposed by Foster AJA as revised by the subsequent matter mentioned by Ipp AJA.

4 FOSTER AJA: This is an application for leave to appeal and, if leave be granted, for the hearing of an appeal against a judgment given in the District Court of New South Wales at Sydney on 21 August 2001. By that judgment her Honour Acting Judge Gamble from the District Court awarded to the respondent, Joanne Nicole Cureton, ("Ms Cureton"), against the appellant, Jason Anthony Moore, Mr Moore, the amount of $52,461.05. Because of the size of that award, leave to appeal to this Court is required.

5 The plaintiff's claim before her Honour contained a number of separate claims. Two of these were comparatively large, one being for an amount of $40,000 and the other being for an amount of $10,500. In addition to these claims, there were a number of smaller ones, to which it is not necessary to make reference. The claims arose during a period in which the appellant and the respondent resided together in a domestic relationship in the appellant's house in a town on the North Coast of New South Wales.

6 The claim, as originally brought by the respondent, included claims under the Property Relationships Act 1984 ("The Act"). It appears from her Honour's judgment that those claims were abandoned, or at least abandoned insofar as they were formulated as claimed under that Act. In the upshot of the respondent's claim her Honour formed the view that the two amounts to which I have made reference could properly be regarded as repayable loans made by Ms Cureton to Mr Moore.

7 The first amount was paid to Mr Moore by Ms Cureton on 24 December 1997. It was paid to enable a reduction to be made in the mortgage on Mr Moore's house in which Ms Cureton and her children were residing. The other amount of $10,500 was the agreed trade-in value of her car, which she had provided to enable a purchase to be made of a larger and more expensive vehicle to be used in respect of their relationship.

8 There is no need to enunciate the basis upon which her Honour allowed those claims. The award of the moneys in respect of them is not in dispute in these proceedings.

9 In respect of the other claims that were brought by Ms Cureton, her Honour dismissed them on the basis that evidence in the case did not enable her to find that they had been established.

10 The central feature of both the application for leave to appeal and the appeal itself is the manner in which her Honour dealt with the cross-claim brought in the proceedings by Mr Moore. The cross-claim is lengthy and it has been provided to the Court only today. It did not find its way into the appeal papers.

11 It is not necessary for me to refer in any way to the detail of it. I will merely remark that it is extensive and contains a number of financial claims made by Mr Moore against Ms Cureton, those claims being alleged to have arisen in the course of and in respect of their domestic relationship. By that cross-claim it was clearly intended that any amount which might be awarded to Ms Cureton in her claim would be reduced to reflect of any success in the cross-claim.

12 The cross-claim in respect of those items was based upon Pt 3 of the Act, that Part being devoted to proceedings for financial adjustment. Section 14 of the Act provides that a party to a domestic relationship (and Mr Moore was clearly such a party) may apply to a court for the adjustment of interest with respect to property of the parties to the relationship or either of them. Although it does not appear from the Act itself that the District Court is an appropriate court for such an application, any doubts on that score have been cleared up by the Court's having been referred to the appropriate section of the District Court Act which does, in fact, confer jurisdiction.

13 Section 17 of the Act deals with jurisdictional matters. Section 17(1) provides that a Court shall not make an order unless it is satisfied that the parties to the application have lived together in a domestic relationship for a period of not less than two years. Section 17(2) makes other jurisdictional provisions to which I will refer shortly.

14 As I have indicated, her Honour had before her a significant miscellany of claims brought by Mr Moore in reliance upon these statutory provisions. Her Honour dealt with the cross-action in a fairly summary way. At page 3 of her judgment she said that:

"The relationship between the parties does not meet the requirements of section 17, that they have lived together in a domestic relationship for a period of not less than two years."

15 She went on to say that this period of cohabitation was a pre-requisite to the granting of property adjustments within the meaning of the Act. Later in her judgment, when dealing with Mr Moore's claims, she had this to say:

"Much of Mr Brasch's argument for the defendant was directed to section 20 of the Property De Facto Relationships Act 1984. For the reasons stated on p 3 above I do not believe this argument is sustainable."

"That Act", she went on, "does not apply to the relationship between Ms Cureton and Mr Moore."

16 Although I entertained some doubt originally as to whether her Honour, in making that fairly contentious statement was referring to matters arising under s 17(2), I have come quite firmly to the view, on a close reading of her Honour's judgment, that she had taken the position that in the absence of living together for a period of two years the Act simply did not apply to enable claims to be brought of the type sought to be brought in this cross-claim.

17 It has been submitted on behalf of the applicant that, in so holding, her Honour has fallen into legal error. I am satisfied, with respect, that she, unfortunately, has done so. The result of that is that this extensive cross-claim under the Act has not been the subject of consideration by her Honour in the judgment. The failure to consider it, of course, has simply prevented the cross-claim of Mr Moore being considered at all. That, needless to say, is an unsatisfactory situation and, had it not been for the necessity of obtaining leave, would quite simply, in my view, lead to the granting of an appeal.

18 There is, however, the question of the barrier erected in these proceedings by the necessity of leave being obtained. I have considered whether leave should be granted in this case, having regard to the relatively - in fact, significantly small nature of the claim and the fact that all the material in relation to the disputes between the parties was before her Honour. I have considered whether I have been able to satisfy myself that, notwithstanding the fact that her Honour had not considered the cross-claim within the context of the statutory framework of the Act, she had taken into account the matters raised in the cross-claim when dealing with Ms Cureton's claim. In other words, had she taken the claims brought by Mr Moore for contributions of a financial nature alleged by him to have been made into account in reducing slightly the amount that she awarded to Ms Cureton in respect of the two major items for which she made an award, or had she taken them into account in disallowing the other smaller claims that Ms Cureton had brought. If I considered that this was so, I would have felt that, notwithstanding this error of law, there would be insufficient indication of injustice in the proceedings to enable the granting of leave. However, an examination of her Honour's judgment does not indicate that this course was taken.

19 Certainly there is reference to various claims made by Mr Moore which would qualify as contributions, financial and non-financial, and contributions made in the capacity of homemaker or parent of the type referred to in s 20 of the Act. There is no indication, however, that, apart from reference being made to them they were in any way taken into account in the calculation of the amount ultimately awarded to Ms Cureton. The only result of their being mentioned that I can ascertain from the judgment is an indication that they were, in fact, before her and added some colour, perhaps, to her considerations.

20 Counsel for the appellant has taken us to the affidavit filed by Mr Moore in respect of the cross-action. He has given us the benefit of some calculations based upon the material that appears therein. These calculations would indicate that, should the cross-claim have been successful, an award on it would have been or could have been in the order of $29,000. That is, of course, in terms of the granting of leave in this Court, a fairly small sum. However, if he were successful in recovering that amount or some significant proportion of it, the result would be that he would reduce the amount awarded to the plaintiff by something in the order of fifty per cent.

21 In these circumstances, the denial to him of the opportunity of litigating that cross-claims seems to me to be a circumstance which significantly prevented the doing of justice between the parties, as contemplated in

s 17(2) of the Act. It was, of course, part of the claim under that section that the contributions were of a substantial nature and that, notwithstanding the absence of the two-year period of cohabitation, the failure to take them into account would result in serious injustice.

22 I have some hesitation in the matter because of the quite significantly low sums involved, but I have come to the conclusion that because of the error of law clearly made and because of the way in which that has deprived Mr Moore from having his cross-claim properly considered, that this is a case in which leave should be granted and the appeal should be upheld. I so propose.

23 The question of the order to be made in such circumstances is one of some difficulty. Obviously, the order should be one which would be productive, as little as possible, of further cost to the parties. It is desirable that the matter be returned for hearing before her Honour so that the necessity of litigating the whole of the matter again before another judge can be avoided. It is also desirable, in my view, that her Honour have for consideration, on a re-hearing, only the issues raised by the cross-claim.

24 I would propose, therefore, that the further order be made that the matter be remitted to her Honour for re-hearing only on the issues raised in the appellant's cross-claim. I would also order that so far as the costs of this application and appeal are concerned, that they be awarded to the appellant, but that the respondent be granted a certificate under the Suitors Fund Act if she be otherwise entitled.

25 I omitted to deal with the order that when the matter is remitted for re-hearing only on the cross-claim that evidence should not be led and that the matter should be dealt with only on the evidence that has already been led. I would agree with the order proposed by Ipp AJA.

26 IPP AJA: Gamble ADCJ found that the Property Relationships Act 1984 did not apply to the relationship between Ms Cureton and Mr Moore. The reasons for that conclusion were erroneous. Because of that conclusion, her Honour gave no consideration to Mr Moore's cross-claim. Notwithstanding that evidence had been led and argument had been advanced on the cross-claim, no findings were made in regard thereto and Mr Moore's contentions were simply not dealt with.

27 In my opinion, the omission to deal with the cross-claim in this way constitutes such a departure from what a litigant is entitled to expect from the proper administration of justice that I think leave to appeal should be given, irrespective of the very small amount, relatively speaking, involved.

28 For these reasons, I agree with Foster AJA. I also agree with the orders he proposes. I should say that I am not certain whether his Honour made an order that when the matter is remitted for re-hearing only on the cross-claim that evidence should not be led and that the matter should be dealt with only on the evidence that has already been led. For my part, I would make such an order.

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LAST UPDATED: 28/06/2002