Auricchio & Auricchio and Ors (No. 2) - [2014] FamCA 240

FAMILY COURT OF AUSTRALIA

AURICCHIO & AURICCHIO AND ORS (NO. 2)

[2014] FamCA 240

FAMILY LAW – PROPERTY – Interim – Where the wife has lodged a caveat over a property – Where the second respondent seeks its removal.

Family Law Act 1975 (Cth) ss 31(1)(a), 79, 114(3)
Land Title Act 1994 (Qld) ss 122, 126(4), 127

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Fencott v Muller (1983) 154 CLR 261
Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Re Jorss’ Caveat [1982] Qd R 458
Ex part Goodlet & Smith Investments Pty Ltd [1983] 2 Qd R 792
Burman v AGC (Advances) [1994] 1 Qd R 123
Cousins Securities Pty Ltd v CEC Group Ltd [2007] 2 Qd R 520
Rockett v Evans [2008] QSC 227
Bowe & Bateman [2012] FamCA 392
Vaughan v Bele (No 2) [2012] FamCA 605

APPLICANT:

Ms Auricchio

1st RESPONDENT:

Mr Auricchio

2nd RESPONDENT:

B Property Pty Ltd

3rd RESPONDENT:

B Pty Ltd

FILE NUMBER:

BRC

1338

2014

DATE DELIVERED:

15 April 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

9 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Looney QC

SOLICITOR FOR THE APPLICANT:

Cassandra Pullos Lawyers

COUNSEL FOR THE RESPONDENTS:

Mr North SC
with Mr S Williams of Counsel

SOLICITOR FOR THE RESPONDENTS:

Murdoch Lawyers

Orders made 9 April 2014

The wife’s application for an adjournment is dismissed.
The wife shall forthwith take all necessary steps to cause the Registrar of Titles to remove the caveat from the title of the property at C Street, Suburb E and she shall meet any necessary costs associated with the removal of the caveat.
The husband’s costs of and incidental to the application for the removal of the caveat are reserved.
Pursuant to Rule 19.18 of the Family Law Rules 2004 it is certified that this matter is a complex matter and one proper for the attendance of Queen’s Counsel on behalf of the wife and Senior Counsel with Junior Counsel on behalf of the husband and the other respondents.
The remaining applications of the wife and the husband are adjourned for hearing at 10.00 am on Tuesday, 3 June 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Auricchio & Auricchio and Ors (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1338 of 2014

Ms Auricchio

Applicant

And

Mr Auricchio

First Respondent

And

B Property Pty Ltd

Second Respondent

And

B Pty Ltd

Third Respondent

REASONS FOR JUDGMENT

On Wednesday 8 April, 2014, I ordered the wife in these property proceedings to take all steps necessary to cause the Queensland Registrar of Titles to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FamCA 240
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were Ms Auricchio (the wife) and Mr Auricchio (the husband), along with two companies, B Property Pty Ltd (the second respondent) and B Pty Ltd (the third respondent). The dispute concerned the wife's lodgement of a caveat over a property located at C Street, Suburb E, which was registered in the name of the second respondent. The second respondent sought the removal of this caveat. The matter came before the Family Court of Australia, presided over by Forrest J.

The primary legal issue before the Court was whether the wife had established a sufficient basis to retain the caveat on the title of the C Street property. This involved determining if there was a serious question to be tried regarding her claimed interest in the property, whether she had a caveatable interest, and if the balance of convenience favoured the retention of the caveat. A secondary issue was whether the Court had jurisdiction to hear the application for the removal of the caveat, given that it was brought under Queensland's *Land Title Act 1994* (Qld).

The Court found that it possessed jurisdiction to hear the application for the removal of the caveat, as it arose from a common substratum of facts with the wife's property adjustment and injunction applications, forming a single justiciable controversy. The Court noted that it was exercising federal jurisdiction and applying Queensland law pursuant to the *Judiciary Act 1903* (Cth). The onus was on the wife, as the caveator, to demonstrate a serious question to be tried, an arguable caveatable interest, and that the balance of convenience favoured retention. The Court considered that the wife's assertion of an interest based on an implied, resulting, or constructive trust, while potentially valid, had not yet been formally pleaded in the proceedings.

The Court dismissed the wife's application for an adjournment of the caveat removal application. It ordered the wife to take all necessary steps to have the caveat removed from the title of the C Street property at her own expense. The husband's costs in relation to the application for the removal of the caveat were reserved. The remaining applications by both parties were adjourned for a later hearing.

Orders