Bing and Bing and Anor (No. 2) - [2009] FamCA 709

FAMILY COURT OF AUSTRALIA

BING & BING AND ANOR (NO. 2)

[2009] FamCA 709

FAMILY LAW – PROPERTY – Caveat lodged arising out of a charge granted by the Court over the wife's property entitlement – That order does not entitle the caveator to lodge a caveat over the land owned by the wife and husband and other entities

Family Law Act 1975 (Cth)
Transfer of Land Act 1958 (Vic)

Bell v Graham [2000] VSC 142
Goldstraw v Goldstraw [2002] VSC 491
Hodges Hall v Jovanovic and Markov (1995) FLC 92-611
Penfold v Penfold (1980) FLC ¶ 90-800
Schmidt v 28 Myola Street Pty Ltd [2006] VSC 343
Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584

APPLICANT:

Mr Bing

RESPONDENT:

Ms Bing

INTERVENOR:

ROCKMAN & ROCKMAN

FILE NUMBER:

MLF

1745

2006

DATE DELIVERED:

24 July 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

21 JULY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR BROWN SC

SOLICITOR FOR THE APPLICANT:

NEVILE & CO

COUNSEL FOR THE RESPONDENT:

MR SCRIVA

SOLICITOR FOR THE RESPONDENT:

BUXTON & ASSOCIATES

COUNSEL FOR THE INTERVENOR:

MR ROCKMAN

SOLICITOR FOR THE INTERVENOR:

ROCKMAN & ROCKMAN

Orders

That Rockman and Rockman forthwith withdraw the caveat lodged by them on 7 May 2009.
That Rockman and Rockman pay the costs of the husband of this application by agreement and in default of agreement, as shall be assess.

IT IS NOTED that publication of this judgment under the pseudonym Bing & Bing and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1745 of 2006

MR BING

Applicant

And

MS BING

Respondent

And

ROCKMAN & ROCKMAN

Intervener

REASONS FOR JUDGMENT

These are my reasons arising out of an interim application filed by the husband in the substantive property proceedings. The husband brought the application seeking orders against the wife’s former lawyers who have lodged caveats against the titles to a large number of real properties.
The wife did not participate in the interim proceedings.
The issue is whether the lawyers were entitled to lodge the caveats as a result of an order I made in February 2009.
On 24 February 2009 in interim proceedings to which Rockman and Rockman were interveners, I made the following orders:
1.That the wife forthwith charge in favour of Rockman & Rockman (“the firm”) to the extent of $200,000, her interest and entitlement in the property proceedings in case number MLF 1745 of 2006 including arising from the money due to the wife pursuant to the orders of Mushin J made on 9 February 2007.
2.That notwithstanding the quantum of the charge in paragraph 1 of these orders, the sum ultimately due (if any) to the firm for costs and disbursements shall be subject to any determination of this Court or other agreement between the wife and the firm.
3.Upon the payment to the firm after the determination of any costs…

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 Bing and Bing and Anor (No. 2)

Details

AGLC: Bing and Bing and Anor (No. 2) [2009] FamCA 709
Case: [2009] FamCA 709
Decision Date: 24 July 2009

CaseChat Overview and Summary

In the matter of *Bing and Bing and Anor (No. 2)*, Justice Cronin of the Supreme Court of Victoria considered a dispute between the parties concerning a caveat lodged on 7 May 2009. The application brought before the court involved the husband seeking the withdrawal of this caveat.

The central legal issue before the court was whether the caveat lodged by Rockman and Rockman should be withdrawn. This determination would necessarily involve an assessment of the validity and enforceability of the interest claimed by Rockman and Rockman, which underpinned their right to maintain the caveat.

Justice Cronin ordered that Rockman and Rockman must forthwith withdraw the caveat lodged on 7 May 2009. Furthermore, Rockman and Rockman were ordered to pay the costs of the husband in relation to this application, with costs to be agreed upon or assessed in default of agreement.

Orders

Orders of the court

That Rockman and Rockman forthwith withdraw the caveat lodged by them on 7 May 2009.

That Rockman and Rockman pay the costs of the husband of this application by agreement and in default of agreement, as shall be assess.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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