Bowe and Bateman - [2012] FamCA 392

FAMILY COURT OF AUSTRALIA

BOWE & BATEMAN

[2012] FamCA 392

FAMILY LAW – PROPERTY – where the applicant is currently developing property that is the subject of substantive proceedings before the Court – where the applicant has applied for a loan to facilitate the development – where the applicant seeks an order that the respondent withdraw caveats over certain property, so that such property may be used as security for the loan – where the respondent resists the application – where both parties will benefit from the development – where the respondent raises potential issues regarding the applicant’s use of funds secured under the loan – whether orders should be made requiring the respondent to withdraw the caveats – where respondent ordered to withdraw the caveats – where applicant restrained from selling or encumbering the properties – where applicant ordered to provide documentation in respect of the loan application, and invoices with respect to the development to the respondent’s solicitors.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Bowe

RESPONDENT:

Mr Bateman

FILE NUMBER:

SYC

5565

2010

DATE DELIVERED:

21 May 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney & Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

17 & 21 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell SC

SOLICITOR FOR THE APPLICANT:

Swaab Attorneys

COUNSEL FOR THE RESPONDENT:

Mr Hodgson

SOLICITOR FOR THE RESPONDENT:

Sharon Moss Legal

Orders

IT IS ORDERED THAT

The Respondent do all acts and things and sign all documents necessary to cause to be withdrawn Caveats lodged by him on the following properties:
a.   … S Street, Suburb M, New South Wales;
b.   … R Street, Suburb M, New South Wales;
c.   … C Street, Suburb H, New South Wales.
The Applicant be restrained from selling, listing for sale or otherwise transfering or encumbering the properties specified in paragraph 1 of these Orders, save for the purposes of the construction loan.
The Applicant be restrained from using any moneys obtained prusuant to any construction loans, save for the purposes of discharging the Applicant’s obligations pursuant to any construction contracts relating to the Suburb H property.
The Applicant forward to the solicitors for the Respondent as soon as reasonably practicable, and in any event not later than seven (7) days after the date of these Orders a copy of:
a.   Any application made by her or on her behalf for finance or any document relating thereto;
b.   Any document received from any financial institution in relation to any application for finance;
c.   Any documents relating to any security in respect of any money advanced or proposed to be advanced by any financial institution.
Leave be granted to the Respondent to issue a subpoena to the National Australia Bank Limited, Suburb N.
Leave be granted to each of the parties, through their legal practitioners, to inspect and copy all documents produced pursuant to subpoena issued pursuant to paragraph 5 of these Orders.
In the event that the National Australia Bank raises any objection either to production…

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.

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Details

Case: [2012] FamCA 392
Decision Date

CaseChat Overview and Summary

In *Bowe & Bateman* [2012] FamCA 392, the Family Court of Australia considered an application by the applicant wife, Ms Bowe, for orders that the respondent husband, Mr Bateman, withdraw caveats he had lodged over three properties. Ms Bowe sought to use these properties as security for a construction loan to facilitate the development of one of the properties. Mr Bateman resisted the application, raising concerns about Ms Bowe's financial disclosures and the potential diminution of the property pool available for division.

The central legal issues before the Court were whether orders should be made requiring Mr Bateman to withdraw the caveats, and what protective measures were necessary to address Mr Bateman's concerns regarding the use of loan funds and the development of the property. The Court was required to balance Ms Bowe's need to secure finance to avoid breaching a significant building contract against Mr Bateman's legitimate concerns about the impact on the property pool and the adequacy of financial disclosure.

Justice Murphy found that there were circumstances of urgency due to Ms Bowe's impending payment obligations under the building contract. The Court noted that there was no evidence before it suggesting Mr Bateman had a caveatable interest in the properties. Considering the balance of convenience, and in light of the protective orders to be made, the Court determined that a mandatory injunction requiring the withdrawal of the caveats was warranted. These protective orders included restraining Ms Bowe from selling or encumbering the properties except for the construction loan, restraining her from using loan moneys for purposes other than the construction contracts, and requiring her to provide detailed financial documentation and invoices to Mr Bateman's solicitors.

The Court ordered Mr Bateman to withdraw the caveats, and Ms Bowe to be restrained from selling or encumbering the properties except for the purposes of the construction loan. Ms Bowe was also restrained from using loan moneys save for the performance of her obligations under the construction contracts. Further orders required Ms Bowe to provide loan application documents, financial institution correspondence, security documents, and all invoices and quotations from builders and subcontractors to Mr Bateman's solicitors within seven days of receipt. Leave was granted to Mr Bateman to issue a subpoena to the National Australia Bank, with leave for both parties to inspect and copy documents produced. The Court also made directions for the filing of written submissions and the potential for a further hearing, with a cut-off date of 2 July 2012 for an application to reopen the matter. Costs were reserved.

Orders