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Majak v Rose [2021] NSWSC 292 (29 March 2021)

This is an application by the plaintiff to amend his statement of claim where the proposed amendment relates to Family Court matters. The


The plaintiff and the defendant, Alan Rose, were at one time in a de facto relationship. They jointly owned a property in Bangalow Street, Ettalong, on which were constructed two residential units. The relationship ended, and a dispute over the division of property ensued. This was principally litigated in the Family Court of Australia and in the present proceedings in this Court.

The plaintiff commenced proceedings in this Court by filing a statement of claim on 20 December 2019. She named as defendants, Russell Byrnes who had been the principal solicitor for Mr Rose in the Family Court proceedings as the first defendant, Mr Rose as the second defendant, and Mr Russell Byrnes’ son Matthew, also a solicitor who assisted his father in acting for Mr Rose.

On 21 February 2020, the Registrar ordered that the statement of claim be struck out with liberty to replead. An amended statement of claim was filed on 23 March 2020. It sought declarations and damages in relation to an apprehended violence order that had been taken out against the plaintiff by the second and third defendants.

Mr Rose and his new de facto partner had sought an apprehended violence order against the plaintiff 1on 12 February 2014. The plaintiff had earlier commenced proceedings in the District Court naming as defendants, Mr Rivere, Mr Rose and his de facto partner Miss Reberio. On 26 March 2020, the plaintiff filed an amended statement of claim in the District Court seeking damages on the basis that the application for the AVO was an abuse of process.

On 9 July 2020, Mr Rose filed a notice of motion in this Court, seeking an order that the proceedings in the District Court be transferred into this Court and be consolidated with the proceedings in this Court.  The basis for that motion is that the issues raised in the District Court proceedings are largely the same as those raised in the proceedings in this Court, namely, claims by the plaintiff  arising out of the AVO which was made against her in 2014.

On 27 August 2020, the plaintiff filed a notice of motion seeking leave to file a further amended statement of claim (“the proposed claim”) in the form of a document that had been wrongly filed by her on 2 August 2020. The proposed claim pleaded a fundamentally different claim against Mr Rose, and it did not include matters arising from the application for the AVO, rather, the proposed claim pleaded matters concerned with the Ettalong property, which had been the subject of the Family Court proceedings. Mr Rose was the owner/builder in respect of that property.

Issue: Should the court allow the amendment sought by the plaintiff?



It is apparent from the pleading that the matters about which the plaintiff now complains arise from what was litigated before the Family Court and is governed by the orders of that Court. The plaintiff is changing her cause of action in this Court as a result of “new issues arising in out of the Family Court orders in relation to the subdivision of the property at 29 Bangalow Street”.

The plaintiff relied on the fact that part of her claim relies on an undertaking said to have been given by Mr Rose in the Local Court to complete the building. She submitted that such an undertaking could not be enforced in the Family Court. However, the substance of her claim is that the Family Court orders cannot be perfected until the building work is completed. It is only the Family Court which can deal with that issue, regardless of any undertakings given elsewhere.

It is apparent, therefore, that the claims which the plaintiff makes, relate to compliance with orders made by the Family Court. Given that the Family Court obviously has jurisdiction to deal with the matters, even if this Court had its own jurisdiction, it would necessarily refuse to exercise that jurisdiction in the light of the Family Court orders.

The proposed claim is that the defects and incomplete work are preventing the registration of the strata plan and the subdivision of the property. Where the Family Court made orders about those matters, it was unreasonable of the plaintiff not to have raised those issues or claims in the Family Court proceedings.

Conclusion: For all of these reasons, the plaintiff’s proposed claim will inevitably fail. She should not in the circumstances be permitted to plead it.


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