Carmen Ho v Lorenz Derek Austin Ebert - [2015] NSWSC 1468

Supreme Court

New South Wales

Medium Neutral Citation: Carmen Ho v Lorenz Derek Austin Ebert [2015] NSWSC 1468
Hearing dates: 2 October 2015
Date of orders: 02 October 2015
Decision date: 02 October 2015
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Summons dismissed with costs

Catchwords: REAL PROPERTY – Torrens system – Caveats – Claim for family law property settlement not a caveatable interest – Summons for extension must include claim for final relief
Legislation Cited: Family Law Act 1975 (Cth)
Cases Cited: Choi v Kim [2013] NSWSC 1774
Reddacliffe v Strickland [2010] NSWSC 1028
Ryan v Kalocsay [2009[ NSWSC 1009
Vo v Nguyen [2014] NSWSC 1622
Wu v Dardaneliotou [2008] 1319
Category: Principal judgment
Parties: Carmen Ho (Plaintiff)
Lorenz Derek Austin Ebert (Defendant)
Representation: Counsel:
C. Tan (Solicitor) (Plaintiff)
C.D. Wood (Defendant)
Solicitors:
Canaan Lawyers (Plaintiff)
PJ Donnellan & Co (Defendant)

File Number(s): 2015/285126
Publication restriction: No

EX TEMPORE Judgment

The plaintiff (Ms Ho) and the defendant (Mr Ebert) were married in Sydney on 8 August 2009. The relationship came to an end in or about December 2014. In these proceedings Ms Ho seeks an order extending the operation of a caveat which she has lodged over a property of which Mr Ebert is the registered proprietor in Burwood (the “Property”). Ms Ho is represented by Ms C. Tan, solicitor. Mr C. D. Wood of Counsel appears for Mr Ebert and opposes the extension of the caveat.
When the matter was first called on I was informed that it was likely that the parties would invite the Court to make consent orders extending the caveat for a period for the purpose, as I understand it, of allowing an application for a property settlement under the Family Law Act1975 (Cth) (the “FLA”) to be dealt with in the Federal Circuit Court. Ms Ho has such an application on foot, which is returnable on 18 December 2015. The caveat which is the subject of these proceedings will lapse next Monday, 5 October 2015.
When I was informed of the possibility of a consent order, I drew to the parties’ attention that, having had the opportunity to review the papers, it seemed to me there was no caveatable interest. In those circumstances I indicated that the parties would have to persuade me of an appropriate basis for me to make an order extending a caveat by consent in circumstances where the Court was not satisfied there was a caveatable interest. The matter was stood down to enable discussion between the parties.
When the parties returned to the bar table I was informed that Ms Tan wished to press her client’s application for an extension of the caveat or for leave to file a fresh caveat.
There are two immediate and curious aspects to the way in which the application has been presented. First, the caveat is not actually in evidence before me. Second, the summons claims no final relief. I am not the first judge of this Division to…

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 Carmen Ho v Lorenz Derek Austin Ebert

Details

AGLC: Carmen Ho v Lorenz Derek Austin Ebert [2015] NSWSC 1468
Case: [2015] NSWSC 1468
Decision Date: 02 October 2015

CaseChat Overview and Summary

The case of Carmen Ho v Lorenz Derek Austin Ebert involved a dispute regarding a family law property settlement and the validity of a caveat lodged by the defendant over a property. The plaintiff sought to have the caveat removed, arguing that it was not supported by a caveatable interest. The case was heard in the Family Court of Australia. The court was required to determine whether the caveat was properly lodged and whether the plaintiff's claim for a family law property settlement constituted a caveatable interest under the Real Property Act 1900 (NSW).

The court examined the nature of a caveatable interest and concluded that a claim for a family law property settlement did not constitute such an interest. The court held that a caveat could only be validly lodged if it was based on a legal or equitable interest in the property. As the plaintiff's claim was a personal claim against the defendant, it did not provide a basis for a caveat. Additionally, the court found that the summons for an extension of the caveat did not include a claim for final relief, as required by section 76A of the Real Property Act 1900 (NSW). The court held that the summons was invalid and that the caveat was therefore ineffective.

Consequently, the court ordered that the caveat be removed and that the summons for an extension be dismissed. The court further held that the defendant had failed to establish a caveatable interest and that the caveat was therefore invalid. The final orders of the court included the removal of the caveat and the dismissal of the summons for an extension. The case serves as a reminder that claims for family law property settlements are not caveatable interests and that any summons for an extension of a caveat must include a claim for final relief.

Orders