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) | |
| 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 remove a caveat from the registration of title of a certain real property in Brisbane. The wife had lodged that caveat on 21 March 2014.
These are my reasons for making that order.
Some Background
The husband and the wife lived together from July 2001 until late October 2013, marrying in January 2002. They have two children, who are now 11 and 9 years of age respectively. Those children live with their mother and spend time with their father. Parenting orders proceedings are currently before this Court as well as property adjustment proceedings.
The husband and the wife originally lived in Melbourne but early in their marriage they moved to live in Brisbane and the husband began working in the property development business of his father-in-law. Whilst working for his father-in-law, the husband gained qualifications to be a tradesman himself. A property was purchased in Suburb K and registered in the wife’s name. It was renovated and became the family home. The wife and the two children still live at that property.
After they moved to Brisbane, two units in a Suburb S unit development, undertaken by interests associated with the wife’s father, were acquired and registered in the wife’s sole name. The exact circumstances of their acquisition are not agreed at this point in time but they were owned by the wife unencumbered for a time, but are now encumbered by mortgages securing liability to the Westpac bank.
The husband began property development in his own right in 2011, undertaking development projects through various trust and corporate entities in which he and/or the wife had interests. Two of those companies have been joined by the wife as the Second and Third Respondents to her property adjustment application in these proceedings.
Through their corporate and trust entities, the parties firstly constructed a multi-unit development in T Street, Suburb R in 2011/2012. Another multi-unit development was then constructed at Q Street, Suburb R in 2012/2013.
In early 2013, one of the units in the T Street development was transferred from the parties’ development company (the Second Respondent as trustee for a discretionary family trust of the parties) to the wife’s sole name pursuant to a contract reflecting a consideration of $390,000.
In July 2013, whilst the Q Street development was still being completed, the Second Respondent entered into a contract to purchase another development site in C Street, Suburb E, to settle in February 2014; around the time the settlement of the sale of the Q Street units was to take place.
The wife was aware of the contract for the purchase of the C Street property as she had signed the contract for some reason, even though she was not a director of the Second Respondent.
The separation of the husband and the wife brought tumult and deep mistrust to their relationship. Unfortunately, but not unsurprisingly in the circumstances, the co-operative spirit with which they conducted their parenting and their joint financial affairs prior to separation has completely disappeared since separation. Both engaged lawyers to advise them and represent their separate interests. Included as one issue among many that the parties are in dispute about is the wife’s father’s assertion that the husband owes him around $800,000. The husband does not agree with that claim, whilst the wife apparently does.
On 14 February 2014, the wife filed an Initiating Application in this Court seeking property adjustment orders that give her 90 per cent of the “net matrimonial assets” and the remaining 10 per cent to the husband. She also sought interim injunctions.
At that time, the sale of all of the units in the Q Street development (many or all of which had been sold off the plan prior to completion) were due to settle. The wife sought mandatory injunctions that the husband and the Second Respondent pay the proceeds of sale of all of those units in payment of a debt to the Westpac Bank secured over the Q Street property, other associated costs and the balance into the wife’s solicitor’s trust account.
The wife also sought a mandatory injunction for the immediate sale by the Second Respondent of the C Street property once the purchase of that property by the Second Respondent had settled.
Those (and other) interim applications were listed for hearing in this Court on 25 March 2014.
On 21 March 2014, the husband filed an Amended Response and his supporting affidavit evidence. He sought the dismissal of the wife’s applications for injunctions as well as interim orders for the sale of the former family home in Suburb K and the T Street unit.
By the husband’s evidence, it became clear that events had actually overtaken some of the relief originally sought by the wife. The sale of all of the units in the Q St development had been completed and the proceeds of sale dispersed. Some portion of the proceeds of the sale of those units had been contributed to funds used to complete the purchase of the T Street development site, settlement of which had been able to be effected on 17 March after an extension had been obtained from the vendor on conditions. The husband had caused the Second Respondent to enter into finance arrangements with the Westpac Bank for a finance facility to fund the proposed development of the T Street property with no security for that being taken over any of the properties registered in the wife’s name and no guarantee required from the wife. The husband had caused the Second Respondent to enter into a joint venture agreement with entities associated with two other men with whom he had business connections and they were proposing immediately pressing on with the development.
Although it is not clear that it was done in response to the revelations in the husband’s evidence, that same day, 21 March 2014, the wife lodged a caveat on the title to the C Street property registered in the name of the Second Respondent. She lodged the caveat pursuant to s 122 of the Land Title Act 1994 (Qld) as “a person claiming an interest in a lot”. The interest she claimed was “an Estate in Fee Simple as beneficial owner” and the grounds upon which she so claimed were set out as:
Pursuant to an implied, resulting or constructive trust to the extent that the said caveator made financial and non-financial contributions to the acquisition, maintenance and improvement of the said land.
Written notice of the lodgement of the caveat was sent by the Registrar of Titles as required by s 123 of the Land Title Act on 24 March 2104 to the address of the Second Respondent that had been supplied on the caveat by the wife.
At the hearing on 25 March, 2014, the wife sought a two week adjournment of the hearing of all the interim applications, apparently because of the events that had occurred that had overtaken her applications. She sought disclosure in the meantime as well as an urgent interim injunction restraining the husband, the Second Respondent and the Third Respondent (another company, B Pty Ltd, associated with the husband in the development business) from dealing with the C Street property in any way, including taking any steps to progress any development of the property.
The hearing of all of the interim applications, except the one the wife sought urgently that day, was consensually adjourned to 9 April 2014. Disclosure orders were made against the husband and other Respondents, but Kent J refused to grant the interim injunction that was actually sought by the wife that day. He gave reasons that were published on 27 March 2014. Nowhere in those reasons does he mention the caveat lodged by the wife on 21 March. The husband concedes though that he did become aware that a caveat had been lodged in respect of the C Street property at the hearing on 25 March 2014. I am not aware of the circumstances of him becoming aware of that.
The husband filed a Further Amended Response on Monday 7 April 2014 in which he sought, in addition to the orders for the sale of the former family home and the T Street unit, an order that the wife take all steps necessary to remove the caveat lodged by her over the C Street property at her expense.
When the matter was called on for hearing before me, Queen’s Counsel for the wife informed the Court that the parties had again agreed to adjourn the hearing of all of the applications for interim injunctions and property orders to a later date. For the wife, it was asserted that was because of deficiencies said to still exist in the husband’s disclosure, Kent J’s order not having been complied with by the husband. The Court was informed that the application for the removal of the caveat was still pressed but that the wife sought to have that adjourned as well. That adjournment was opposed by the husband and the other two Respondent companies. Further affidavits of the wife and the husband were filed by each of them with the Court’s leave and relied upon as evidence in each of their cases in respect of that adjournment application.
The application for the removal of the caveat
The application for removal of the caveat was brought pursuant to s 127 of the Land Title Act. That section provides:
(1) A caveatee may at any time apply to the Supreme Court for an order that a caveat be removed.
(2) The Supreme Court may make the order whether or not the caveator has been served with the application, and may make the order on the terms it considers appropriate.
“Caveatee” is defined in the Dictionary contained in schedule 2 to the Land Title Act as follows:
For a lot over which a caveat has been lodged, [caveatee] means –
(a) a registered proprietor of the lot; or
(b) someone (other than the caveator) who has an interest in the lot.
The Second Respondent is the registered proprietor of the lot over which the caveat has been lodged. Clearly, it may apply to the Supreme Court for an order that a caveat be removed.
Although Mr North SC never formally announced appearance for the Second Respondent and the Further Amended Response in which the application for an order that the caveat be removed was filed by the husband, who is the First Respondent, the written submissions of Mr North SC and Mr Williams carried the clear implication that they were also appearing for the Second Respondent. It is agreed that the husband is the sole director and sole shareholder of the Second Respondent. Clearly, it is the husband who would be instructing the lawyers on behalf of the Second Respondent.
There was no issue made about the question of whether or not the Second Respondent was actually the applicant for the removal of the caveat. In the circumstances, I accepted that the Second Respondent was the applicant for the order.
This Court’s Jurisdiction
By s 31(1)(a) of the Family Law Act 1975 (Cth) this Court is given jurisdiction with respect to matters arising under this Act in respect of which matrimonial causes are instituted or continued under this Act. Allsop CJ writing extra-curially[1] described “matter” as meaning:
the justiciable controversy between the actors to it, comprised of the substratum of facts and claims representing or amounting to the dispute or controversy between or among them. It is not the cause or causes of action brought, nor is it the proceedings.
[1]““Accrued” Federal Jurisdiction and the Family Court”, Family Court Conference, Melbourne, 2013.
Mr North SC and Mr Williams submitted that this Court has jurisdiction to deal with the application for the removal of the caveat as it arises out of a common substratum of facts with the wife’s application for an injunction and forms part of a single justiciable controversy along with that application. I accept that is correct.[2] Indeed, Mr Looney QC did not argue against that submission.
[2]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 and Re Wakim; Ex parte McNally (1999) 198 CLR 511.
In dealing with the application for the removal of the caveat the Court is exercising federal jurisdiction and “picking up” and applying Queensland State law, where appropriate, by s 79 of the Judiciary Act 1903 (Cth). That s 127 of the Land Title Act refers specifically to the Supreme Court is, as Mr North SC and Mr Williams submitted, “no impediment to the exercise of power” by this Court when exercising federal jurisdiction here in Queensland.[3]
[3]Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559per Gleeson CJ , Gaudron and Gummow JJ at [58] and [65].
Mr Looney QC for the wife made no submission against the correctness of that law. There was also no disagreement that in an application to remove a caveat such as this, where the determination is nevertheless being made as part of the exercise of federal jurisdiction, the onus is on the caveator to satisfy the Court that:
(i)there is a serious question to be tried which involves showing “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo”; and
(ii)it is fairly arguable that the caveator has a caveatable interest in the land, and, if so [my emphasis]
(iii)the balance of convenience favours the retention of the caveat on the title.”[4]
[4]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 and Rockett v Evans [2008] QSC 227.
The adjournment of the application for the removal of the caveat was not made on the basis of the fact that the wife had only been given notice of it on Monday 7 April, two days before the hearing. It was made on the basis that the husband’s disclosure pursuant to Kent J’s orders had been late and deficient, and that the wife thus needed more time to consider the disclosed documents. Mr Looney QC submitted that proper consideration of the disclosed material would better place the wife to be able to present her case as to the balance of convenience favouring the retention of the caveat.
Mr North SC made the submission in response that if the wife’s evidence did not disclose an arguable case for the determination of a caveatable interest in the subject property, there was no point to the adjournment that was being sought to more carefully consider the preparation of her case in respect to the balance of convenience argument. I respectfully considered that submission to have merit and considered that if I was not satisfied by the wife’s evidence that she had an arguable case to establish the interest in the land that she claimed in the caveat that there was no point in granting the adjournment just so matters relevant to the balance of convenience could be further considered.
I set out in paragraph 18 of these reasons the interest claimed by the wife in the caveat she lodged and the grounds of the claim that she set out in the same caveat. She asserts she owns “an estate in fee simple as beneficial owner” on the basis of an “implied, resulting or constructive trust”. Although the Court was informed that there was a current intention to file in the proceedings in this Court an Amended Application seeking to establish the interest the wife claimed, that had not been done by the time of the hearing, which was just under three weeks from the lodgement of the caveat. Of course, a caveator has 3 months from the lodgement of the caveat to take such a step before the caveat lapses or only 14 days from the date of being served with a notice requiring her to do so by the caveatee.[5] The caveatee (the Second Respondent) had not served such notice at the time of the hearing and the wife had not yet “asserted” her interest, in the sense of taking a formal step in the proceedings in this Court to establish her interest as claimed.
[5] Section 126(4) of the Land Title Act.
Nevertheless, the onus to satisfy the Court that she had an arguable case for an equitable or beneficial interest in the C Street property was on her and it may have been easier for her to meet that onus had a formal step been taken such as the filing of an Amended Application with an attached pleaded case in the form of a Statement of Claim. That had not happened and the wife was in the position of having to try to meet the onus on the evidence that was before the Court.
Mr Looney QC referred the Court to the wife’s evidence that he submitted would satisfy the Court that the wife has an arguable case to establish her claimed interest. He firstly pointed to paragraphs 79 and 80 of the wife’s affidavit of evidence filed on 14 February, 2014. Those two paragraphs are as follows:
In March 2012 my parents gifted me two units; number [1] and [2] [U] Street, [Suburb S]. I have two elder sisters and each of us received two units from our parents. Those units were transferred into my sole name. The units gifted to my sisters were also transferred into their sole names. At the time the two (2) units were gifted to me, they were mortgage free. In or about July 2012, [the husband] and I took steps to draw on the equity in those units to provide us with funds for the development of the [Q] Street project. We obtained a mortgage with the Westpac Bank secured against both units for this purpose. I estimate that he units would be valued at $520,000 each. The two units are encumbered by the same two mortgages secured by the Westpac Bank. I do not know the balance on the mortgages currently outstanding.
In May 2013 [the husband] and I had transferred to us a unit at [T] Street, [Suburb R]. That unit was one in a unit block which our property development business undertook. I estimate that the unit would be worth $400,000. It is encumbered a mortgage (sic) secured by the Westpac Bank.
Mr Looney QC then pointed to the title searches for the T Street unit and the two U Street units that are exhibit BA-02 to the wife’s affidavit filed 25 March, 2014 (after she had lodged the caveat but before the existence of the application for the removal of the caveat). The title search for the T Street unit reflects that the transfer to the wife of that property was registered on 2 May 2013. It records that a mortgage no …35 to Westpac was registered on the title to the property on 27 February 2013 (before the registration of the transfer to the wife) and that another mortgage no …06 to Westpac was registered on 2 May 2013, the same day as the registration of the transfer to the wife.
Each of the title searches for the two U Street units reflect the registration of one mortgage no …93 in favour of Westpac on 18 July 2012 and then two separate mortgages, no …42 and no …43, one over each property, on 22 April 2013.
Mr Looney QC did not refer to it, but paragraph 6 of the wife’s affidavit filed 25 March 2014 says:
In or about July 2012 [the husband] told me that he needed more money to help fund the property development project he was completing at that time at [Q] Street, [Suburb R] (“the [Q] Street project”). I agreed to obtaining a mortgage against the [U] Street units to fund the [Q] Street project and to the best of my knowledge in July 2012 we obtained a mortgage with Westpac drawing approximately $450,000 against the property. Those mortgages are registered against both units and are mortgage numbers …38 and …43 (“the [U Street] property mortgages”).
Similarly, although not referred to, Paragraph 8 of the same affidavit relevantly says:
During the course of our relationship the rent from the [U] Street units was paid into an account that I was instructed by [the husband] I was not to deal with and he would use those funds for the business. [The husband] told me that he caused the business to pay the mortgage as the property development business had borrowed the funds. …
Again, although not referred to, Paragraphs 38 and 39 of the same affidavit say:
The [Q] Street project was funded via a $2.4 million overdraft facility taken out with the Westpac Bank by [the Second Respondent] which at the time of deposing to my previous affidavit had been drawn to its limit.
I had given a personal guarantee for the $2.4 million loan facility which facility was secured by way of mortgage over the former matrimonial home and the two [U Street] properties held in my sole name.
Mr Looney QC also referred to the wife’s evidence (in paragraph 10 of her affidavit filed 25 March 2014), that she has been advised by the Westpac Bank that the mortgage balance of $457,635.02 is owing in respect to the mortgages …38 and …43 secured against the two [U] Street properties.
I note that the first of those two mortgages referred to by the wife in that paragraph was registered on the title to one of the U Street units on 18 July 2012 but the second one was registered on the title to the other U Street unit on 22 April 2013, around the time the wife had the T Street unit transferred into her name for a consideration expressed on the contract to be $390,000, and in respect of which Queensland stamp duty of $12,075 is stamped as having been paid (a total of $402,075) .
In his affidavit filed 21 March 2014, the husband (at [10]) said:
There are no borrowings owing to the Westpac Bank in respect of the [Q] Street development. The [Q] Street development is complete. The [Q] Street development was funded by a Cash Advance facility provided by Westpac which had a limit of $2,420,000.00 All payments due on the Westpac Cash Advance facility were made between 28 February 2014 and 3 March 2014.
I agree that the Cash Advance initially provided by Westpac in respect of the [Q] Street development was insufficient to complete the project. Additional expenses over and above the $2,420,000.00 were incurred in the amount of $350,000.00. I agree that I was advised by Westpac on 13 December 2013 that the facility had been drawn to its limit and that no further drawings would be permitted. The additional expenses to complete the [Q] Street development were finalised after settlement of the nine units.
At paragraph 12 of that same affidavit, the husband said:-
I agree that [the wife] provided a Limited Guarantee and Indemnity to secure the Westpac Cash Advance facility in respect of the [Q] Street development. Mortgages over four matrimonial properties, which are registered in [the wife’s] sole name, were offered in support of the Limited Guarantee and Indemnity that was provided by [the wife].
…
Accordingly, [the wife] is not be (sic) required to provide any guarantee or indemnity and the mortgages previously encumbering the four matrimonial properties held in [the wife’s] sole name have been released.
The evidence otherwise establishes that the husband and the Second Respondent have been able to put in place financing arrangements for the proposed construction of the unit development on the C Street property without the need for the wife to provide any guarantee or indemnity and without the need for support by mortgage over any of the four properties registered in her name.
In paragraph 49(e) of his affidavit filed 7 April, 2014, the husband says:
[The Second Respondent] is not responsible for the payment of the investment loan that is owing in respect of the [Suburb R] unit. ... Whilst the unit did assist to raise capital that was directed to the purchase of the [Q] Street development site it was also intended to form part of [the wife’s] and my tax minimisation strategy. [The wife] was aware of and consented to the purchase of the unit on this basis.
Attached to the husband’s affidavit filed 21 March 2014 at RA3 is a schedule of the spending of the proceeds of sale of the Q Street units. It reflects the husband’s assertion that the Second Respondent used $530,410 of those proceeds towards settling the purchase of the C Street property in March this year.
Mr North SC pointed out that the wife said in paragraph 61 of the affidavit she filed on 25 March 2014 the following:
On 21 March 2014 I lodged a caveat over the property at [C] Street [Suburb E] to protect my interest in that property...
He submitted, correctly, I was satisfied, that she did not depose to any bases asserting a caveatable interest such as claimed by her. He also submitted, again correctly, I was satisfied, that no trust was deposed to of the nature asserted by the wife in the caveat. The submission went on to assert:
... the Wife offers no evidence to support the existence of a trust, a breach of trust, or some other foundation for the remedy of constructive trust, for instance some unconscionable dealing.
Again I respectfully accepted that submission.
From the evidence that I have referred to I consider it is safe to find the following:
·There was a mortgage over the T Street unit before the wife acquired it from the Second Respondent, probably supporting the $2,420,000 Cash Advance facility that the Second Respondent utilised to complete the construction of the Q Street property;
·There were mortgages over the U Street units, probably also supporting the $2,420,000 Cash Advance facility that the Second Respondent utilised to complete the construction of the Q St property, also supported by a Guarantee and Indemnity given by the wife;
·That an investment loan of $450,000 in the wife’s name was also secured with mortgages over the T Street unit and the U Street units, and $390,000 of that was used to purchase the T Street unit from the Second Respondent with another $12,000 of it being used to pay stamp duty on the contract of purchase;
·That the funds paid to the Second Respondent by the wife for the purchase of the T Street unit were then used towards the purchase of the Q Street development site;
·The $2,420,000 Cash Advance facility has been paid out and the wife released from any liability in respect of it, including discharge of mortgages encumbering properties registered in her sole name that supported this facility and the Guarantee and Indemnity she gave in respect of it.
With respect, the highest I could put the position advanced by Mr Looney QC for the wife on the evidence is that there is an inference available to be drawn by the Court that the wife, therefore, somehow contributed $48,000 into the cost of purchasing the Q Street development site or the cost of constructing the units on that site. Without actually having deposed to the assertion or without actually submitting it was the case, I understand the wife’s case is likely to be that she therefore somehow acquired an equitable interest in the Q Street development that on the sale of all of the units in that property must be traceable, through the use of the $530,000 from the sale proceeds of those units in the purchase of the C Street site for around $1,500,000, into an interest in that property.
As Mr North SC submitted, correctly, I was satisfied, there was simply no evidence from the wife, who carried the onus of persuading the Court, that the $48,000 was somehow transferred by her to the Second Respondent other than as a loan and actually applied in the Suburb R development in some way. The Court was simply being asked to draw inferences to this effect from the evidence and Mr Looney QC himself even submitted that the wife could not fully “articulate all of the events that give rise to such a trust”.
As Mr North SC ultimately pointed out, even putting the wife’s case at its highest, with all inferences being drawn in her favour, the value of any equitable interest that she might potentially establish she had in the Q Street development that cost approximately $2,700,000 alone just to construct would have to be minimal. Tracing that through the $530,000 of the total $4,119,000 sale proceeds from Q Street that were put into the approximate $1,500,000 total purchase price of the C Street property would, if it somehow could be demonstrated to have given rise to an equitable interest, be an interest of even more minimal value.
In all of these circumstances, I was just not satisfied by the wife that there was a serious question to be tried and that she had demonstrated “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo”. I was not persuaded that the wife had a “fairly arguable” caveatable interest in the C Street property.
Accordingly, I determined not only that the adjournment sought by the wife should not be granted but also that the caveat should be ordered to be removed without even going on to hear any further argument as to the balance of convenience.
The Order made by the Court
For the husband and the Second Respondent it was submitted that this Court could determine the application by the issuing of a mandatory injunction requiring the wife to remove the caveat. Reference was made to Murphy J’s decision in Bowe & Bateman [2012] FamCA 392 and also to s 114(3) of the Family Law Act in support of that submission. Again, for the wife, no issue was taken with that submission. I accepted it as correct and made the order in terms sought by the husband and the Second Respondent.
However, I am also of the view that I could have simply made an order, such as is made by the Supreme Court when it determines that a caveat should be removed pursuant to an application brought pursuant to s 127 of the Land Title Act, namely that the caveat “be removed”.[6] Such an order is not an injunction directed at the caveator to do all things necessary to remove the caveat but is rather an order that the Queensland Registrar of Titles must act on.
[6] For example see the orders of Martin J in Rockett v Evans [2008] QSC 227.
I am satisfied, just as Cronin J was in Vaughan v Bele (No 2) [2012] FamCA 605 when he determined that this Court had power, exercising federal jurisdiction, to order the Victorian Registrar of Titles to issue a new certificate of title pursuant to a provision of the Transfer of Land Act 1958 (Vic), that this Court could have made an order that the caveat “be removed”. S 79 of the Judiciary Act picks up the power contained within s 127 of the Land Title Act, federalises it and authorises the exercise of the power by this Court exercising federal jurisdiction.[7]
7See again Allsop CJ’s paper referred to in footnote 1 hereof, at page 40, where his Honour discussed Cronin J’s decision.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 15 April 2014.
Associate:
Date: 15 April 2014
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