Auricchio & Auricchio and Ors (No. 2)

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.