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Banduka & Banduka

Banduka & Banduka

Case [2021] FedCFamC1F 191 12 November 2021

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Banduka & Banduka [2021] FedCFamC1F 191

File number(s): SYC 3682 of 2016

Judgment of: HARPER J

Date of judgment: 12 November 2021

Catchwords: FAMILY LAW – PROPERTY – Interim application – Where the wife seeks removal of caveats over the former matrimonial home – Where caveats registered by third parties to whom the husband owes business debts as guarantor – Wife seeks the sale of the former matrimonial home with proceeds to be held on trust pending determination of s 79 proceedings – Property held by husband and wife as joint tenants – Where the contracts signed by the husband and third parties created an equitable mortgage or equitable charge over his interest in the former matrimonial home – Where caveators are secured creditors with no dispute as to the size of, or other challenge to, the debts owed – Caveators seek sale of former matrimonial home with payment of their debts to the extent of the husband’s share of the proceeds of sale and simultaneous removal of the caveats – Where on the evidence husband’s share unlikely to be sufficient to discharge debts in full –Wife relies upon s 90AE and s 90AF for removal of caveats – Consideration and discussion of foreseeability under s 90AE(3)(b) and s 90AF(3)(b) – Court not satisfied it would not be foreseeable at time of the order that the caveators’ debts would not be paid in full – No discretion under either s 90AE or 90AF enlivened – Further claim by wife for partial property settlement or litigation funding of $150,000 to be paid from her share of proceeds of sale – Orders made for sale of former matrimonial home and for caveators to be repaid to the extent of value of husband’s share – Orders made for removal of caveats – Order made for partial property settlement of $150,000 in favour of the wife.

Legislation:
Family Law Act 1975 (Cth) Part VIIIAA, ss 79, 80(1)(h), 90AC(1)(a), 90AE, 90AF, 106B, 114(3), 117(2),

Family Law Amendment Act 2003 (Cth) sch 6

Conveyancing Act 1919 (NSW) s 23C(1)

Real Property Act 1900 (NSW) s 74MA

Second reading speech, Family Law Amendment Bill 2003 (Cth), Senate Hansard, 2 December 2003

Explanatory Memorandum, Family Law Amendment Bill 2003 (Cth)

Cases cited:
Abraham v Abraham [2012] NSHPL 254

Biltoft and Biltoft (1995) FLC 92-614; (1995) 19 Fam LR 82; (1995) 126 FLR 385

Bluescope Distribution Pty Ltd [2010] NSHPL 794

Buchanan v Crown & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24-513; (2007) NSW ConvR 56-173; [2006] NSHPL 1465

Carlson & Carlson (2019) FLC 93-934; [2019] FamCAFC 245

Commissioner of Taxation v Tomaras (2018) 265 CLR 434; (2018) 93 ALJR 118; [2018] HCA 62

Dovgan & Dovgan [2021] FamCA 306

Dunworth & Falletti [2020] FamCA 178

El-Kazzi v Kassoum [2009] NSHPL 99

Frederick v Frederick (2019) 60 Fam LR 1; [2019] FamCAFC 87

Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1;

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.

Continue reading Banduka & Banduka

Details

AGLC: Banduka & Banduka [2021] FedCFamC1F 191
Case: [2021] FedCFamC1F 191
Decision Date

CaseChat Overview and Summary

The parties involved in this case were the wife, the husband, and various caveators who had lodged caveats over a property at Suburb F. The central dispute was the validity and priority of the caveats lodged by the caveators, as well as the release of funds from the sale of the property to the wife. The case was heard in the Supreme Court of New South Wales. The legal issues before the court were whether the caveats were valid and enforceable and, if so, what priority should be given to each creditor. Additionally, the court needed to determine the appropriate distribution of the sale proceeds from the property to satisfy the debts owed to the caveators and to release a portion to the wife.

The court examined the nature and enforceability of the guarantees provided by the husband to secure the debts owed by HPL to the caveators. The court found that the guarantees were valid and enforceable and that the husband's equitable interest in the property was charged to secure these guarantees. Regarding the priority of the caveats, the court considered the date on which each caveat was lodged and determined their respective priorities. The court also addressed the distribution of the sale proceeds, deciding to release $150,000 to the wife from her share of the sale proceeds, while the remaining balance would be distributed to the caveators according to the priority of their charges.

In its decision, the court found that the caveats lodged by B Pty Ltd, C Pty Ltd, and D Pty Ltd were valid and enforceable. The court also ruled that the wife's caveat would be removed, and an order was made against G Pty Ltd to remove its caveat, with authority for a registrar to execute necessary documents if required. The court ordered the sale of the property at Suburb E, with proceeds distributed to satisfy the debts owed to the caveators and to release $150,000 to the wife from her share of the sale proceeds. The court further ordered the caveators to remove their caveats upon settlement of the sale.

Orders

Orders of the court

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Background

Background to the litigation

On 20 October 2021, the wife and the caveators appeared by counsel. The husband was self-represented and required the assistance of an interpreter. The Second Respondent appeared by his solicitor, and there was no appearance by the Third Respondent. Since the primary argument was between the wife, the husband, and the caveators, the hearing proceeded.BACKGROUND There are presently five caveats which have been lodged over the Suburb F property. The caveators are:(a)B Pty Ltd;(b)D Pty Ltd t/as D Company;(c)C Pty Ltd; (d)G Pty Ltd; and(e)The wife. B Pty Ltd (“B Company”), C Pty Ltd (“CPL”), and D Pty Ltd t/as D Company (“D Company”) are the caveators who have engaged with the proceedings. They appeared by the same solicitor and counsel. I will refer to them as “the caveators” in this judgment, and to their caveats as “the relevant caveats”. The evidence showed G Pty Ltd did not accept service of the relevant court documents. It did not appear and played no part in the hearing. I am satisfied that this caveator has been afforded procedural fairness. I will make an order against it to remove its caveat, with a consequential order permitting a registrar of the Court to execute the necessary documents if necessary. I assume the wife will take the necessary steps to remove her own caveat. No order against her is necessary. The relevant caveats are based on debts incurred through a company called H Pty Ltd (“HPL”), of which, at the relevant times, the husband was sole director and shareholder. HPL, through the husband, entered into agreements with the caveators for the supply of business materials on credit. The running accounts produced by these agreements were secured by a guarantee of the husband. His guarantee was then itself secured. An example provision is clause 9 of the husband’s guarantee given to B Company, in the following terms:The Guarantor hereby agrees to charge all the equitable interest in freehold or leasehold property. The Guarantor agrees to deliver to the Supplier, within seven (7) days of demand, a properly executed Memorandum of Mortgage in a form approved by the Supplier and which includes a covenant providing that interest may be charged on all outstanding monies sat rates set out from time to time by Section 94 of the Supreme Court Act 1970 (NSW), and otherwise in accordance with Memorandum …, registered at the office of the Registrar General in Sydney. The Company and/or individual person(s) referred to in section (1 ), and/or (2) of this application hereby Charge all their Right, Title, Interest (if any) in the property of properties referred to in Section (1) and (2) of this application and also any property or properties that they own currently or may acquire in the future solely or jointly or have become to have a beneficial interest in, in favour of B Pty Ltd T/A B Company, with the due and punctual observance and performance of all of the obligations of the Customer/Buyer. Such person(s) acknowledge that B Pty Ltd T/A B Company, may at its discretion register and lodge a Caveat(s) on such property or properties in respect of the interests conferred on it by this clause. Such registration of a Caveat(s) by B Pty Ltd TIA B Company over the Customer(s) property or properties shall not be challenged by the Customer/Buyer in any way whatsoever, and the Buyer agrees not to take any steps in filing a "Lapsing Notice" via the Land Titles Office to have the Caveat(s) removed, until such time the Buyer has paid all monies owing by it to B Pty Ltd T/A B Company as claimed from time to time. If the charge created by this clause is or becomes void or unenforceable, it may be severed from this agreement without any effect on its validity; and the Guarantor will not be exonerated in whole or part. Nor will the Suppliers rights, remedies or recourse against the Guarantor or any other Guarantor in any way be prejudiced or adversely affected by such a severance.

Evidence

Evidence Before The Court

The caveators proposed the following orders as outlined in a document entitled “Interim Orders Sought at Applicant’s Interim Application”:1.That the Applicant and the First Respondent shall do all acts and things and sign all necessary documents to effect the sale of the property at E Street in the state of New South Wales and more particularly described in Certificate of Title Folio Identifier … [sic] and for that purpose the following shall apply:a.The property shall be listed for sale by private treaty with such real estate agent as is agreed between the the [sic] Applicant and the First Respondent and failing agreement within 14 days from the date of these Orders the real estate agent will be as nominated by the then president or chief executive officer of the Real Estate Institute at the request of the the [sic] Applicant and the First Respondent or either of them.b.The list price of the property shall be such amount as is agreed between the the [sic] Applicant and the First Respondent and failing agreement within 14 days of the date of these Orders the list price will be as nominated by the real estate agent.c.The sale price of the property shall be such amount as is agreed between the the [sic] Applicant and the First Respondent and failing agreement any offer to buy the property that is at least 80% of the list price shall be accepted by the the [sic] Applicant and the First Respondent as the sale price.d.The Applicant and the First Respondent are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.e.That upon agreement being reached for sale of the property the the [sic] Applicant and the First Respondent shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.f.The contract of sale shall provide for completion within 30 days after the date of the contract.g.The proceeds of sale of the property shall be paid in the following manner and priority:i.To discharge the registered mortgage to Commonwealth Bank of Australia.ii.Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale.iii.Payment of the conveyancing costs relating to the sale.iv.The balance to be applied as follows:A.50% of the balance to be paid into and held in Jordan’s Law Practice Trust Account until conclusion of the proceedings on a final basis.B.The remaining 50% of the balance to be paid out in the following order:(1) First, to B Pty Ltd in discharge of its charge over the First Respondent’s share of the property;(2) Second, to D Pty Ltd t/as D Company in discharge of its charge over the First Respondent’s share of the property;(3) Third, to C Pty Ltd in discharge of its charge over the First Respondent’s share of the property; and(4) The residue thereafter to be paid into and held in Jordan’s Law Practice Trust Account until conclusion of the proceedings on a final basis.2.In the event that the property is not sold by private treaty pursuant to Order 1 on or before six months from the date of this Order then the First Respondent and the Applicant (“the the [sic] Applicant and the First Respondent”) shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:a.The property shall be listed with the agent appointed under Order 1(a) (hereinafter called “the auctioneer”) for sale by auction within a further 3 months.b.The Applicant and the First Respondent shall execute all documents requested by the auctioneer for sale of the property by auction.c.The reserve price of the property shall be such amount as is agreed between the Applicant and the First Respondent and failing agreement being reached between the Applicant and the First Respondent 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer.d.The Applicant and the First Respondent shall each pay to the auctioneer one half of any sums requested for advertising or auction expenses and if one of the Applicant and the First Respondent pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the the [sic] Applicant and the First Respondent.e.The Applicant and the First Respondent shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer.f.The Applicant and the First Respondent agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction.g.That the Applicant and the First Respondent attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached.h.The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be such amount as is agreed between the the [sic] Applicant and the First Respondent or failing agreement any offer received after the auction to buy the property at a price that is at least 80% of the reserve price shall be accepted by the Applicant and the First Respondent.i.That the Applicant and the First Respondent attend at the auction and negotiate with the highest bidder or any other interested party in the event that the reserve price is not reached, for the purpose of reaching agreement under Order 2(h).j.That upon agreement being reached for sale of the property, Orders 1(e), 1(f) and 1(g) shall apply.3.In the event that the property is not sold at the auction pursuant to Order 2 or within 14 days after the date of the auction by further negotiation, then the Applicant and First Respondent shall cause a further auction of the property to be held within 4 months after the date of the first auction and for that purpose the provisions of Order 2 shall apply.4.B Pty Ltd do all acts and things and take all necessary steps to remove Caveat … on title upon settlement of the sale of the property.5.C Pty Ltd do all acts and things and take all necessary steps to remove Caveat … on title upon settlement of the sale of the of the property.6.D Pty Ltd Pty Ltd t/as D Company do all acts and things and take all necessary steps to remove Caveat … [sic] on title upon settlement of the sale of the property.EVIDENCE

Decision

Reasons for decision

I am satisfied that, taking a broad brush approach, the release to the wife of $150,000 from her share of the proceeds of sale form the Suburb F property is justified. CONCLUSION For the foregoing reasons, I will make the orders as set out at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Banduka & Banduka [2021] FedCFamC1F 191

Most Recent Citation

Duan & Ren (No 4) [2025] FedCFamC1F 130

Cases Citing This Decision

Duan & Ren (No 4) [2025] FedCFamC1F 130
Citation 1 (Para 9)

…(2) and (4) of the Act, on an interim application can form a “broad brush” view of the parties’ financial circumstances ( Banduka & Banduka [2021] FedCFamC1F 191 at [89], [90]). The Court must be satisfied it is appropriate, just and equitable to make such an order. This includes a cautious approach and satisfaction tha…

See all citing cases →

Cases Cited

Valder & Saklani [2021] FamCAFC 142
Citation 1 (Para 3)

…rs of a party to a marriage must be taken into account in s 79 proceedings. This is embedded in s 79(10)(a) of the Act. Recently, in Valder & Saklani [2021] FamCAFC 142 at [33], the Full Court explained: Section 79(10)(a) of the Act relevantly provides that a “creditor of a party to the proceedings if the creditor ma…
Panwar and Panwar & Anor [2020] FamCA 480
Citation 2

…36 Fam LR 64; [2006] FamCA 167 Osferatu & Osferatu [2012] FamCA 408 Panwar & Panwar (2020) 63 Fam LR 44; [2020] FamCA 480 Paris King Investments Pty Ltd v Rayhill [2006] NSHPL 578 Re Chemaisse & Commissioner of Taxation (No 3) (1990) 97 FLR 176; (1990) 13 Fam LR 724; (1990) FLC 92-133, Ross Cook and Brett Cook Pty…
Dunworth & Falletti [2020] FamCA 178
Citation 3 (Para 16)

…The wife did not contend the debts were not real or created at an arms’ length, and the evidence left no doubt this was so: cf Dunworth & Falletti [2020] FamCA 178, where Wilson J held there was a prima facie argument that the debts supported by caveat were “sham” transactions. There was no application by the wife…
Tapp and Talbott and Anor [2020] FamCA 57
Citation 4 (Para 28)

…is “foreseeable” that the caveators will not be paid in full if the orders sought by the wife are made, is unavoidable: see Tapp v Talbott [2020] FamCA 57 at [73]–[75] (“ Tapp ”).…
Carlson & Carlson [2019] FamCAFC 245
Citation 5

…Ltd (2006) 13 BPR 24-513; (2007) NSW ConvR 56-173; [2006] NSHPL 1465 Carlson & Carlson (2019) FLC 93-934; [2019] FamCAFC 245 Commissioner of Taxation v Tomaras (2018) 265 CLR 434; (2018) 93 ALJR 118; [2018] HCA 62 Dovgan & Dovgan [2021] FamCA 306 Dunworth & Falletti [2020] FamCA 178 El-Kazzi v Kassoum [2009] NSHPL 99…
Frederick v Frederick [2019] FamCAFC 87
Citation 6

…& Falletti [2020] FamCA 178 El-Kazzi v Kassoum [2009] NSHPL 99 Frederick v Frederick (2019) 60 Fam LR 1; [2019] FamCAFC 87 Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; (2016) 18 BPR 36,173; [2016] NSWCA 240 Hodges Hall v Jovanovic and Markov (1995) FLC 92-611; (1995) 19 Fam LR 241; (1995) 126…
Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24
Citation 7

…rd & Stanford (2012) 247 CLR 108; [2012] HCA 52 Ta Lee Investment Pty Ltd v Antonios (2019) 19 BPR 39153; [2019] NSWCA 24 Taleb v National Australia Bank Ltd (2011) 82 NSWLR 489; (2011) 16 BPR 30,247; [2011] NSHPL 1562 Tapp v Talbott [2020] FamCA 57 Tomaras and Tomaras & Anor and Commissioner of Taxation (2017) 57…
Federal Commissioner of Taxation v Tomaras [2018] HCA 62
Citation 8

…FLC 93-934; [2019] FamCAFC 245 Commissioner of Taxation v Tomaras (2018) 265 CLR 434; (2018) 93 ALJR 118; [2018] HCA 62 Dovgan & Dovgan [2021] FamCA 306 Dunworth & Falletti [2020] FamCA 178 El-Kazzi v Kassoum [2009] NSHPL 99 Frederick v Frederick (2019) 60 Fam LR 1; [2019] FamCAFC 87 Hanson Construction Material…
Tomaras & Tomaras & Anor and Commissioner of Taxation [2017] FamCAFC 216
Citation 9

…amCA 57 Tomaras and Tomaras & Anor and Commissioner of Taxation (2017) 57 Fam LR 112; (2017) 106 ATR 878; [2017] FamCAFC 216 Valder & Saklani [2021] FamCAFC 142 Van der Merwe v Cantale [2021] NSHPL 1203 Warner v Andrews [2011] NSHPL 956 Halsbury’s Laws of Australia (LexisNexis, 295 Mortgages and Securities, ‘Equitabl…
XYZ Pty Ltd and Anor & Charisteas & Ors; ABC Pty Ltd & Charisteas and Ors [2017] FamCAFC 112
Citation 10 (Para 16)

…ge and matrimonial causes: Hunt v Hunt at [119]; XYZ Pty Ltd and Anor & Charisteas & Ors; ABC Pty Ltd & Charisteas and Ors (2017) FLC 93-782; [2017] FamCAFC 112 at [89]. By reason of s 90AC(1), such an order overrides the provisions of a trust deed. In Hunt & Hunt (2006) 36 Fam LR 64; [2006] FamCA 167 (“ Hunt & Hunt…
Hanson Construction Materials Pty Ltd v Roberts [2016] NSWCA 240
Citation 11

…2019] FamCAFC 87 Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; (2016) 18 BPR 36,173; [2016] NSWCA 240 Hodges Hall v Jovanovic and Markov (1995) FLC 92-611; (1995) 19 Fam LR 241; (1995) 126 FLR 48 Hunt & Hunt (2006) 36 Fam LR 64; [2006] FamCA 167 Osferatu & Osferatu [2012] FamCA 408 Panwar & Pan…
Stanford v Stanford [2012] HCA 52
Citation 12

…3, Ross Cook and Brett Cook Pty Ltd v Bli 1 & Anor [2009] QSC 300 Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52 Ta Lee Investment Pty Ltd v Antonios (2019) 19 BPR 39153; [2019] NSWCA 24 Taleb v National Australia Bank Ltd (2011) 82 NSWLR 489; (2011) 16 BPR 30,247; [2011] NSHPL 1562 Tapp v Talbott [2020]…
Osferatu & Osferatu [2012] FamCA 408
Citation 13 (Para 19)

…a detailed enquiry, but on an interim application can form a “broad brush” view of the parties’ financial circumstances: eg Osferatu & Osferatu [2012] FamCA 408 at [41].…
Taleb v National Australia Bank Ltd [2011] NSWSC 1562
Citation 14 (Para 5)

…he relevant contractual terms constitute a present grant of a charge or mortgage enforceable in equity: Taleb v National Australia Bank Ltd (2011) 82 NSWLR 489 at [64]–[65]; Ta Lee Investment Pty Ltd v Antonios (2019) 19 BPR 39153 at [95]–[98]. …
Ross Cook and Brett Cook Pty Ltd v Bli Bli #1 [2009] QSC 300
Citation 15 (Para 6)

…les in jurisdictions where land tenure is governed by Torrens System legislation. For example, in Ross Cook and Brett Cook Pty Ltd v Bli Bli 1 & Anor [2009] QSC 300 at [21], Martin J in the Supreme Court of Queensland summarised relevant principles in the same terms, with extensive reference to Buchanan . In Hans…
Allan and Allan and Ors [2009] FamCA 553
Citation 16 (Para 16)

…perty between the parties, and cannot be used for the purpose of increasing the property of the parties. In Allan and Allan and Ors [2009] FamCA 553; 41 Fam LR 565 at [99] Watts J emphasised that the sections cannot be used “to deprive a third party of its rights simply to benefit a party to the marriage”. The same…
B Pty Ltd and Ors & K and Anor [2008] FamCAFC 113
Citation 17 (Para 16)

…sufficiently connected to the division of the property between parties to a marriage”. The Full Court in B Pty Ltd & Ors & K & Anor [2008] FamCAFC 113; (2008) FLC 93-380 at [63] made clear that any order made under these sections must be for the purpose of effecting the division of a property between the parties, and…
Sullivan v Sullivan [2006] NSWCA 312
Citation 18 (Para 4)

…In the frequently cited decision of Buchanan v Crown & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24-513 (“ Buchanan ”), Brereton J said at [11]: A highly relevant consideration is whether the removal of the caveat will derogate from the caveator’s claim. There is great force in the submission made by Mr Bransg…
Buchanan v Crown & Gleeson Business Finance Pty Ltd [2006] NSWSC 1465
Citation 19

…1995) FLC 92-614; (1995) 19 Fam LR 82; (1995) 126 FLR 385 Bluescope Distribution Pty Ltd [2010] NSHPL 794 Buchanan v Crown & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24-513; (2007) NSW ConvR 56-173; [2006] NSHPL 1465 Carlson & Carlson (2019) FLC 93-934; [2019] FamCAFC 245 Commissioner of Taxation v Tomaras (2018) 265 CLR 434; (2018) 93 ALJR 118; [201…
Hunt v Hunt [2006] FamCA 167
Citation 20 (Para 16)

…017] FamCAFC 112 at [89]. By reason of s 90AC(1), such an order overrides the provisions of a trust deed. In Hunt & Hunt (2006) 36 Fam LR 64; [2006] FamCA 167 (“ Hunt & Hunt ”), O’Ryan J held that Part VIIIAA did not contemplate “some arbitrary invasion of the rights of a third party but an alteration of those righ…
Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22
Citation 21 (Para 4)

…e case where a valid caveat will be removed for reasons of the balance of convenience. Thus in Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, Owen J said (at 50): However it seems to me interlocutory removal of a caveat where an arguable case as to the existence of a caveatable interest has been d…
J & H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57
Citation 22 (Para 11)

…ts and to others who may be dealing with the land of a contrary interest: see J and H Just (Holdings) Pty Limited v The Bank of New South Wales & Ors (1971) 125 CLR 546 at 552 per Barwick CJ; Jacobs v Platt Nominees Pty Ltd & Ors (1990) V.R. 146 at 149-151; Bacon & Ors v O'Dea (1989) 25 FCR 495 at 506-7; Butler v Fai…
Abigail v Lapin [1934] UKPCHCA 1
Citation 23 (Para 11)

…& Ors v O'Dea (1989) 25 FCR 495 at 506-7; Butler v Fairclough & Anor (1917) 23 CLR 78; Avco Financial Services Ltd v Fishman (1992) 1 V.R. 90 at 94 ; Abigail v Lapin (1934) AC 491 . As the Full Court of the Federal Court pointed out in Bacon v O'Dea , supra, at 506 it is ''not, in general, designed as a substitute for re…
Butler v Fairclough [1917] HCA 9
Citation 24 (Para 11)

…wick CJ; Jacobs v Platt Nominees Pty Ltd & Ors (1990) V.R. 146 at 149-151; Bacon & Ors v O'Dea (1989) 25 FCR 495 at 506-7; Butler v Fairclough & Anor (1917) 23 CLR 78; Avco Financial Services Ltd v Fishman (1992) 1 V.R. 90 at 94 ; Abigail v Lapin (1934) AC 491 . As the Full Court of the Federal Court pointed out in…
Dovgan & Dovgan [2021] FamCA 306
Citation 25 (Para 16)

…It is unnecessary to set out the terms of ss 90AE and 90AF in full. In Dovgan & Dovgan [2021] FamCA 306 at [295], I outlined, and rely upon here, some of the relevant aspects and reach of ss 90AE and 90AF as follows: The range of orders that the Court can make is broad. For example, orders can be made under s 90AE(…
Abigail v Lapin (1934) AC 491
Citation 26 (Para 11)

…989) 25 FCR 495 at 506-7; Butler v Fairclough & Anor (1917) 23 CLR 78; Avco Financial Services Ltd v Fishman (1992) 1 V.R. 90 at 94 ; Abigail v Lapin (1934) AC 491 . As the Full Court of the Federal Court pointed out in Bacon v O'Dea , supra, at 506 it is ''not, in general, designed as a substitute for registrat…

Legislation Cited

Conveyancing Act 1919 (ACT) 23C(1)
2 mentions (from Para 16)
Real Property Act 1900 (NSW) 74MA
2 mentions (from Para 5)
Family Law Act 1975 (Cth)
1 mention
Family Law Amendment Act 2003 (Cth)
1 mention (from Para 12)
Supreme Court Act 1970 (NSW)
1 mention (from Para 16)

File number(s):	SYC 3682 of 2016
Judgment of:	HARPER J
Date of judgment:	12 November 2021
Catchwords:	FAMILY LAW – PROPERTY – Interim application – Where the wife seeks removal of caveats over the former matrimonial home – Where caveats registered by third parties to whom the husband owes business debts as guarantor – Wife seeks the sale of the former matrimonial home with proceeds to be held on trust pending determination of s 79 proceedings – Property held by husband and wife as joint tenants – Where the contracts signed by the husband and third parties created an equitable mortgage or equitable charge over his interest in the former matrimonial home – Where caveators are secured creditors with no dispute as to the size of, or other challenge to, the debts owed – Caveators seek sale of former matrimonial home with payment of their debts to the extent of the husband’s share of the proceeds of sale and simultaneous removal of the caveats – Where on the evidence husband’s share unlikely to be sufficient to discharge debts in full –Wife relies upon s 90AE and s 90AF for removal of caveats – Consideration and discussion of foreseeability under s 90AE(3)(b) and s 90AF(3)(b) – Court not satisfied it would not be foreseeable at time of the order that the caveators’ debts would not be paid in full – No discretion under either s 90AE or 90AF enlivened – Further claim by wife for partial property settlement or litigation funding of $150,000 to be paid from her share of proceeds of sale – Orders made for sale of former matrimonial home and for caveators to be repaid to the extent of value of husband’s share – Orders made for removal of caveats – Order made for partial property settlement of $150,000 in favour of the wife.
Legislation:	Family Law Act 1975 (Cth) Part VIIIAA, ss 79, 80(1)(h), 90AC(1)(a), 90AE, 90AF, 106B, 114(3), 117(2), Family Law Amendment Act 2003 (Cth) sch 6 Conveyancing Act 1919 (NSW) s 23C(1) Real Property Act 1900 (NSW) s 74MA Second reading speech, Family Law Amendment Bill 2003 (Cth), Senate Hansard, 2 December 2003 Explanatory Memorandum, Family Law Amendment Bill 2003 (Cth)
Cases cited:	Abraham v Abraham [2012] NSHPL 254 Biltoft and Biltoft (1995) FLC 92-614; (1995) 19 Fam LR 82; (1995) 126 FLR 385 Bluescope Distribution Pty Ltd [2010] NSHPL 794 Buchanan v Crown & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24-513; (2007) NSW ConvR 56-173; [2006] NSHPL 1465 Carlson & Carlson (2019) FLC 93-934; [2019] FamCAFC 245 Commissioner of Taxation v Tomaras (2018) 265 CLR 434; (2018) 93 ALJR 118; [2018] HCA 62 Dovgan & Dovgan [2021] FamCA 306 Dunworth & Falletti [2020] FamCA 178 El-Kazzi v Kassoum [2009] NSHPL 99 Frederick v Frederick (2019) 60 Fam LR 1; [2019] FamCAFC 87 Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1;