BREEZ v JOLLY

[2007] SASC 10

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

BREEZ v JOLLY

[2007] SASC 10

Judgment of Judge Lunn a Master of the Supreme Court

22 January 2007

REAL PROPERTY

Caveat - wife lodged caveat over land in former husband's name claiming constructive trust - consent order previously made concerning the land in property settlement proceedings in the Family Court which Order the plaintiff had applied to set aside - held any interest which the plaintiff had in the land had merged into the Family Court Order and her claim to set aside that Order did not give rise to a caveatable interest - held any order to preserve the status quo pending the Family Court hearing the plaintiff's application to set aside the property settlement was a "matrimonial cause" over which the Supreme Court has no jurisdiction.

BREEZ v JOLLY
[2007] SASC 10

1. JUDGE LUNN The plaintiff instituted this action on 3 January 2007 seeking an urgent order for an extension of the time to remove a caveat under s 191 of the Real Property Act 1886.  The application was supported by an affidavit of the plaintiff.  On the initial hearing on 4 January the solicitor for the defendant submitted that this Court had no jurisdiction.  She argued the point on the facts disclosed in the plaintiff’s affidavit and did not seek to file any answering affidavit.  I reserved my decision but injuncted the defendant from dealing with the land until I had ruled on the application.

2. The parties were married in 1999.  They jointly purchased a block of land at 66 Esplanade, Hardwicke Bay (“the land”) and later built a house on it.  The plaintiff alleges that she contributed substantial sums to the purchase and improvement of that land from her earnings and her own assets. 

3. The parties separated in May 2005.  On 25 November 2005 both parties applied to the Family Court of Australia for consent orders for a property settlement.  The plaintiff was not then legally represented.  The Court made an order by consent on 15 December 2005 whereby the plaintiff transferred her interest in the land to the defendant and the defendant paid $80,000 to the plaintiff.  There is a sealed Order of the Family Court incorporating the terms of this property settlement.  It states that these orders are “in full and final settlement of any claim for settlement of the property and alteration of property interests that either party has against the other”.

4. For reasons which are not material to what I have to decide the plaintiff now believes that she has grounds to set aside the Order for the property settlement. On 1 September 2006 she lodged a caveat over the title to the land claiming an undefined interest in it under a constructive trust arising from her contributions to the acquisition and improvement of the land. The defendant warned the caveat and hence the present proceedings. On 2 January 2007 the plaintiff took out an application in the Family Court under s 79A(1) of the Family Law Act 1975 (“the Act”) to have the property settlement Order set aside and new orders made for a property settlement in different terms.

5. Any cause of action which the plaintiff had prior to the 15 December 2005 to enforce a constructive trust in her favour over the land merged into the judgment of the Family Court made on 15 December 2005, and now cannot be pursued unless that judgment is first set aside:  Olivieri v Stafford (1989) 91 ALR 91; Commonwealth v Precision Pools Pty Ltd (1994) 53 FCR 183. On the terms of the sealed Order of the Family Court, and ss 78 and 79 of the Act, it is clear that the matters giving rise to the plaintiff’s alleged constructive trust were dealt with by the Family Court in makings its Order of 15 December 2005. Any claim which the plaintiff has under s 79A of the Act for a further property settlement in respect of the land is not a claim for a constructive trust, and cannot be the subject of a caveat: Hayes v O’Sullivan (2001) 24 WAR 40. Any proceeding to preserve or enforce such a right would be a “matrimonial cause” under the Act over which this Court has no jurisdiction.

6. I granted the injunction on 4 January on the basis that this Court has jurisdiction to make interlocutory injunctions until it determines the question of its jurisdiction:  Al-ru Farm Pty Ltd v Hedleys Humpers Ltd, Mullighan J, 22 February 1991, Judgment No S 2721 (unreported).  That injunction will now be discharged.