Bonomi v Bonomi

[2014] SASC 121

Supreme Court of South Australia

(Civil: Application)

BONOMI v BONOMI

[2014] SASC 121

Judgment of The Honourable Justice Gray (ex tempore)

26 August 2014

REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - REMOVAL - OTHER MATTERS

Application to extend the time for removal of a caveat.  The plaintiff is engaged in proceedings in the Family Court against the defendant, his former wife.  The Family Court proceedings concern the property settlement between the plaintiff and defendant and the custody of one of the children of the marriage.  The plaintiff lodged a caveat over the matrimonial home, which was registered solely in the defendant’s name, claiming an interest arising out of his contributions to the purchase price, maintenance and improvement of the land.  The defendant lodged an application to remove the caveat.  The Family Court proceedings had been listed for trial and were still on foot at the time of the defendant’s application to remove the caveat.  Orders of the Family Court potentially restrain the defendant from making the application to remove the caveat.

Whether to extend the time for removal of the caveat.

Held (granting the application):

1.  The plaintiff’s interest in the property, if any, will be determined by the Family Court proceedings.

2.   In the circumstances, it is appropriate to extend the time for removal of the caveat until after the Family Court has made its final orders.

Real Property Act 1886 (SA) s 191, referred to.

BONOMI v BONOMI
[2014] SASC 121

Civil

GRAY J.

1. This is an application to extend the time for removal of a caveat under section 191 of the Real Property Act 1886 (SA).

2. The plaintiff and applicant, Giovanni Tomaso Bonomi, is engaged in proceedings against his former wife, Therese Josefa Bonomi, in the Family Court.[1]  Those proceedings are under the control of Dawe J. The parties were married for 25 years and separated on or about 10 May 2012.  The parties divorced on 26 July 2013.  There are three children of the marriage, aged 20, 18 and 11 years, respectively.  The Family Court proceedings concern the property settlement between the plaintiff and defendant and the custody of the 11 year old child.  Those proceedings have been listed for trial commencing 19 January 2015.

   [1]    Action number ADC 1946 of 2012.

3. The property at 37 Shakespeare Avenue, Tranmere, was the marital home at the time of separation.  It is registered solely in the defendant’s name.  On the plaintiff’s case, he has an interest in equity in the property as a result of his contributions to the purchase price, maintenance and upkeep.  The property has been used by the defendant since the cessation of the relationship as her residence and that of two of the children of the marriage.

4. On 31 May 2012, the plaintiff lodged a caveat over the property, claiming to be beneficially entitled to an estate or interest in fee simple in some undefinable share or shares, having contributed disproportionately to the acquisition, maintenance and improvement of the land described in the caveat.  The caveat forbade any dealing with the land.  More particularly, it forbade the registration of any dealing in the land.

5. On 2 April 2014, Dawe J made an order that, inter alia, during the period of the adjournment, the parties to the Family Court proceeding, namely the plaintiff and defendant, are restrained, and an injunction was granted restraining each of them from transferring, encumbering or in any way dealing with their interest in the property without the prior written consent of the other party.  It is to be noted that the restraint is described to be limited to “the adjournment”.  I consider that there may be some ambiguity about the period during which that injunction was to continue.  I anticipate that it was intended to continue until the final determination of the proceeding.  If that injunction is to be varied or extended, it is a matter for Dawe J to deal with, rather than this Court.

6. On 5 August 2014, while the plaintiff was overseas, the defendant made an application to remove the caveat. On the same day, the Registrar General wrote to the plaintiff advising him that the caveat would be removed after 21 days from the date of the defendant’s application, being 26 August 2014, unless the plaintiff obtained an order of the court made pursuant to section 191(g) of the Real Property Act 1886 (SA).

7. On 18 August 2014, the plaintiff’s solicitors wrote to the defendant requesting that she withdraw her application to remove the caveat.  On 20 August 2014, the plaintiff’s solicitors contacted the defendant by telephone, again requesting that she withdraw her application to remove the caveat.  The defendant indicated that she would not do so. 

8. On 21 August 2014, the plaintiff made an application in this Court to extend the time for removal of the caveat until final orders are made by the Family Court.  The defendant did not attend the hearing, which took place on 22 August 2014.  The defendant only received notice of the application late on 21 August 2014.  It is possible that the defendant may have wished to attend but was unable to do so at the listed time. 

9. In the circumstances, I consider it appropriate to extend the time for removal of the caveat.  The extending of the time for removal of the caveat will prevent any registration or any dealing in the property until the resolution of the Family Court proceedings, which will determine the plaintiff’s interest in the property, if any.

10. I order that the time for removal of caveat 11768182 lodged in the Land Titles Office in respect of the land comprised and described in certificate of title register book volume 6062, folio 547, being the property known as 37 Shakespeare Avenue, Tranmere in the State of South Australia, be extended until final orders are made by the Family Court of Australia in matter number ADC 1946 of 2012.

11. I reserve the question of costs.

12. I give liberty to apply to this Court to vary or discharge the above order.