FAMILY COURT OF AUSTRALIA
| CAULFIELD & READ AND ANOR | [2020] FamCAFC 127 |
| FAMILY LAW – APPEAL – PROPERTY – Whether a registered mortgage is subject to s 24 of the Limitation of Actions Act 1974 (Qld) – Whether the appellant’s rights under his mortgage over the husband and the wife’s property have been extinguished – Proper construction of s 24 of the Limitation of Actions Act 1974 (Qld) – Discussion of the tension between s 24 of the Limitation of Actions Act 1974 (Qld) and the Land Title Act 1994 (Qld) – Statute of limitations – Indefeasible title – Where a title arising from a mortgage can be extinguished by provisions in a statute of limitations – Appeal dismissed. FAMILY LAW – CROSS-APPEAL – PROPERTY – Appeal against final property settlement orders – Where the mortgaged properties the subject of the substantive appeal form a significant portion of the property available for division between the husband and the wife – Assessment of contributions – Consideration of s 75(2) factors – Challenges to credit and fact findings – No merit in any of the grounds of the cross-appeal – Cross-appeal dismissed. |
| Family Law Act 1975 (Cth) s 75(2) Uniform Civil Procedure Rules 1999 (Qld) r 389 Queensland, Parliamentary Debates, Legislative Assembly, 9 December 1959 Queensland Law Reform Commission, On a Bill to amend and consolidate the law relating to Limitation of Actions (Report No 14, 2 October 1972) Tyler, ELG, PW Young and CE Croft, Fisher & Lightwood’s Law of Mortgage (LexisNexis Australia, 3rd ed, 2013) LexisNexis, Halsbury’s Laws of Australia, (at 27 May 2020) 295 Mortgages and Securities, ‘14 Remedies of the Mortgagee’ [295-7305] |
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- AGLC
- Caulfield & Read [2020] FamCAFC 127
- Case
- [2020] FamCAFC 127
- Decision Date
CaseChat Overview and Summary
The central legal issue in this appeal is whether section 24 of the Limitation Act applies to registered interests under the Land Title Act 1994 (Qld), which succeeded the Real Property Act 1861 (Qld). Mr Caulfield contends that section 24 does not apply to his mortgage, which is registered under the Land Title Act, and therefore, his interest as a mortgagee should not be extinguished. The court was required to determine whether the primary judge's interpretation of the Limitation Act was correct in concluding that the appellant's mortgage had been extinguished. The court also needed to address the husband's cross-appeal concerning the division of the net property between the parties.
The court examined the language of section 24 of the Limitation Act and found that it does not explicitly exempt registered interests under the Land Title Act from its operation. The court held that the primary judge's interpretation of the statute was correct, and that the appellant's interest as a mortgagee had indeed been extinguished (at [108] and [161]). The court further found that the primary judge's division of the net property between the husband and the wife was appropriate, and dismissed both the appeal and the cross-appeal.
The court ordered that the application in an appeal filed on 28 October 2019 be dismissed, that the appeal be dismissed, and that the cross-appeal be dismissed. The form of the order is subject to the entry of the order in the Court's records.
Orders
Orders of the court
1.
The Application in an Appeal filed on 28 October 2019 be dismissed.
2.
The appeal be dismissed.
3.
The cross-appeal be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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
This appeal primarily concerns the proper construction of s 24 of the Limitation of Actions Act1974 (Qld) (“the Limitation Act”) which provides:Extinction of title after expiration of period of limitation(1)Subject to section 17, subsection (2) of this section and the Real Property Act 1861, where the period of limitation prescribed by this Act within which a person may bring an action to recover land (including a redemption action) has expired, the title of that person to the land shall be extinguished.(2)Where an action to recover land is brought before the expiration of the period of limitation prescribed by this Act, the expiration of that period does not affect the right or title of the plaintiff to the land—(a)for the purposes of the action; and(b)so far as the right or title is established in the action. Mr Caulfield (“the appellant”) submits that his mortgage over three properties at Town B (“the Town B properties”) owned by Ms Read (“the wife”) and Mr Fry (“the husband”), which is registered under the Land Title Act1994 (Qld) (“the Land Title Act”) (the successor to the Real Property Act 1861 (Qld) (repealed)), is not subject to s 24 of the Limitation Act because that section specifically exempts registered interests under the Land Title Act from its operation. The primary judge did not find this to be the case and held that the appellant’s interest as mortgagee had been extinguished (at [108] and [161]). The issue is of great significance to the husband and the wife because the mortgaged Town B properties form a significant portion of the property available for division between them in their property settlement proceedings. The husband and the wife were married in late June 2000. Almost three weeks later, on … July 2000, the husband became bankrupt on the hearing of a creditor’s petition. He was discharged from bankruptcy in August 2003. Notwithstanding his bankruptcy, the husband managed to retain his interest in the Town B properties. A further property was purchased in State K, United States of America (“USA”) (“the State K property”) in 2004. The husband and the wife separated in August 2005. At the time of the hearing before the primary judge, the husband and the wife agreed that the three Town B properties were worth $190,000, $18,500 and $18,500, respectively (at [164]). The State K property was agreed to be worth AUD402,500 and was subject to a mortgage in the sum of AUD108,890 (at [165]). The wife had superannuation valued at $24,740 (at [167]). The primary judge’s finding that the appellant’s mortgage over the Town B properties had been extinguished led to a finding that the net property held by the husband and the wife, including superannuation held by the wife, was just under $575,000 (at [225]). His Honour considered that the appropriate division of this property was for the wife to receive 75 per cent and the husband to receive 25 per cent. The husband has filed a cross-appeal challenging the correctness of that outcome, which will be discussed below.