Cull & Lenz (No. 2) - [2020] FamCA 980

FAMILY COURT OF AUSTRALIA
Cull & Lenz (No. 2) [2020] FamCA 980

File number(s): SYC 6598 of 2017

Judgment of: REES J

Date of judgment: 24 November 2020

Catchwords: FAMILY LAW – TRANSACTIONS TO DEFEAT CLAIMS – Where the wife entered into a contract of sale of a property – Where Orders of this court prevented her from selling the property – Where the husband had sought the property be transferred to him as part of final property settlement – Where the purchaser was a bona fide purchaser for value – Orders made for caveats to be withdrawn – Application to set aside the contract for sale dismissed – Orders for the proceeds of sale to be placed in a controlled monies account - Orders for the wife to pay the costs of the husband and the purchaser on an indemnity basis.

Legislation: Family Law Act 1975 (Cth) s 106B, 117(2A)

Cases cited:
Balnaves v Balnaves (1988) FLC 91-952

Barnes v Addy (1874) LR 9 Ch App 244

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89

Great Investments Ltd and Ors v Warner (2016) 335 ALR 542

Heath & Heath (No 2) (1984) FLC 91-517

Heath & Heath; Westpac Banking Corporation (1983) FLC 91-362

Lenova & Lenova (Costs) [2011] FamCAFC 141

Twigg and Keady (1996) FLC 92-712

Number of paragraphs: 98

Date of hearing: 11 November 2020

Place: Sydney

Counsel for the Applicant: Mr Lethbridge SC

Solicitor for the Applicant: Nolan Lawyers

First Respondent: In Person

Second Respondent: In Person

Third Respondent: Did not appear

Counsel for the Fourth Respondent: Mr Martin

Solicitor for the Fourth Respondent: Auyeung Hencent & Day Lawyers
ORDERS

SYC 6598 of 2017

BETWEEN:
MR LENZ

Applicant

AND:
MS CULL

First Respondent

MR B CULL

Second Respondent

MS C CULL

Third Respondent (and another named in the Schedule)

ORDER MADE BY:

REES J

DATE OF ORDER:

24 NOVEMBER 2020

THE COURT ORDERS:
1.That the application of the husband, pursuant to section 106B of the Family Law Act 1975 Cth to set aside the contract for sale between the wife and Mr DD, in relation to the property at EE Street, Suburb FF (“Suburb FF”), is dismissed.
2.That the husband serve ZZ Lawyers and HH Pty Ltd with the Application in a Case filed on 9 September 2020 and all affidavit material filed in relation to this application, including that of the wife and the respondents and a copy of these Orders and reasons for judgment forthwith.
3.That ZZ Lawyers and HH Pty Ltd be joined as respondents in these proceedings.
4.That upon the settlement of the sale of Suburb FF, the husband, ZZ Lawyers, HH Pty Ltd and Mr B Cull do all acts required to withdraw their respective caveats lodged on the title of Suburb FF.
5.That ZZ Lawyers and HH Pty Ltd have liberty to apply by arrangement with the Associate to the Honourable Justice Rees in relation to Orders 3 and 4.
6.That upon the settlement of the sale…

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: [2020] FamCA 980
Decision Date: 24 NOVEMBER 2020

CaseChat Overview and Summary

In *Cull & Lenz (No. 2)*, Rees J of the Family Court of Australia considered an application by the husband to set aside a contract for the sale of a property entered into by the wife. The wife had previously been subject to court orders preventing her from selling the property, and the husband sought the property as part of the final property settlement. The purchaser was a bona fide purchaser for value.

The primary legal issue before the court was whether the contract for sale should be set aside, given the prior orders of the court and the husband's claim to the property. The court also had to determine the appropriate orders regarding the withdrawal of caveats, the joinder of third parties as respondents, and the distribution of the sale proceeds.

Rees J dismissed the husband's application to set aside the contract, finding that the purchaser was a bona fide purchaser for value without notice. The court ordered the withdrawal of all caveats lodged on the property title, including those of the husband, ZZ Lawyers, and HH Pty Ltd, and joined ZZ Lawyers and HH Pty Ltd as respondents to the proceedings. The proceeds of sale were to be applied first to discharge the mortgage and agent's commission, then to pay a sum to JJ Pty Ltd, with the balance to be placed in a controlled monies account pending further order. The wife was ordered to pay the costs of the fourth respondent and the husband on an indemnity basis, to be satisfied from any property settlement sum she might receive.

Orders

Orders of the court

THE COURT ORDERS:

1. That the application of the husband, pursuant to section 106B of the Family Law Act 1975 Cth to set aside the contract for sale between the wife and Mr DD, in relation to the property at EE Street, Suburb FF (“Suburb FF”), is dismissed.

2. That the husband serve ZZ Lawyers and HH Pty Ltd with the Application in a Case filed on 9 September 2020 and all affidavit material filed in relation to this application, including that of the wife and the respondents and a copy of these Orders and reasons for judgment forthwith.

3. That ZZ Lawyers and HH Pty Ltd be joined as respondents in these proceedings.

4. That upon the settlement of the sale of Suburb FF, the husband, ZZ Lawyers, HH Pty Ltd and Mr B Cull do all acts required to withdraw their respective caveats lodged on the title of Suburb FF.

5. That ZZ Lawyers and HH Pty Ltd have liberty to apply by arrangement with the Associate to the Honourable Justice Rees in relation to Orders 3 and 4.

6. That upon the settlement of the sale of Suburb FF, the proceeds of sale be applied in the following order and priority:

(a) To discharge the mortgage;

(b) To pay the agent’s commission and costs;

(d) To pay the balance of the amount into a controlled monies account held by Nolan Lawyers on trust for the husband and the wife, pending further order.

7. That the wife pay the costs of the fourth respondent in the sum of $30,000, such costs to be paid from any sum received by the wife by way of property settlement in the substantive proceedings.

8. That the wife pay the costs of the husband in relation to this application on an indemnity basis, as agreed or assessed, such costs to be paid from any sum received by the wife by way of property settlement in the substantive proceedings.

Note: The form of the order is subject to the entry in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 6598 of 2017
Judgment of:	REES J
Date of judgment:	24 November 2020
Catchwords:	FAMILY LAW – TRANSACTIONS TO DEFEAT CLAIMS – Where the wife entered into a contract of sale of a property – Where Orders of this court prevented her from selling the property – Where the husband had sought the property be transferred to him as part of final property settlement – Where the purchaser was a bona fide purchaser for value – Orders made for caveats to be withdrawn – Application to set aside the contract for sale dismissed – Orders for the proceeds of sale to be placed in a controlled monies account - Orders for the wife to pay the costs of the husband and the purchaser on an indemnity basis.
Legislation:	Family Law Act 1975 (Cth) s 106B, 117(2A)
Cases cited:	Balnaves v Balnaves (1988) FLC 91-952 Barnes v Addy (1874) LR 9 Ch App 244 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Great Investments Ltd and Ors v Warner (2016) 335 ALR 542 Heath & Heath (No 2) (1984) FLC 91-517 Heath & Heath; Westpac Banking Corporation (1983) FLC 91-362 Lenova & Lenova (Costs) [2011] FamCAFC 141 Twigg and Keady (1996) FLC 92-712
Number of paragraphs:	98
Date of hearing:	11 November 2020
Place:	Sydney
Counsel for the Applicant:	Mr Lethbridge SC
Solicitor for the Applicant:	Nolan Lawyers
First Respondent:	In Person
Second Respondent:	In Person
Third Respondent:	Did not appear
Counsel for the Fourth Respondent:	Mr Martin
Solicitor for the Fourth Respondent:	Auyeung Hencent & Day Lawyers

ORDER MADE BY:	REES J
DATE OF ORDER:	24 NOVEMBER 2020