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) | |
| 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 | of | 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…
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- Case
- [2014] FamCA 240
- Decision Date
CaseChat Overview and Summary
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.
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