FAMILY LAW – SUMMARY DISMISSAL – Application by third party respondents for summary dismissal of orders and declarations sought by the applicant wife insofar as those orders and declarations affected the interests of the third parties respondents.

CORAM: Finn J

DATE OF HEARING: 28 and 29 August 2006

DATE OF ORDERS: 1 September 2006

Appearances:

Mr Mater of Counsel (instructed by Anne Marie Proctor & Associates, DX 24718 Manuka) appeared on behalf of the applicant wife.

Mr Bartfeld of Senior Counsel with Mr Kearney of Counsel (instructed by Farrar, Gesini & Dunn, DX 5700 Canberra) appeared on behalf of the respondent husband.

Mr North of Senior Counsel (instructed by Crowley Clifford Simpson, DX 5615 Canberra) appeared on behalf of the second, third and fifth respondents.

Order

That the application contained in paragraph 1 of the orders sought in the application filed on behalf of the second, third and fifth respondents on 18 August 2006 be dismissed.

Introduction

On 18 June 2003 the wife filed an application for orders for property settlement against the husband. The orders sought by the wife were for the transfer to her of six properties (free of any mortgages) in Australia and the payment to her of the sum of $15,000,000. It was foreshadowed at a directions hearing on 27 March this year (2006) that the wife's application would be set for a hearing of at least five days to commence on 28 August 2006. That listing was confirmed by an order made on 6 June 2006, although it was noted that the hearing might take 7 to 10 days.
On 6 June 2006 the wife filed an amended application (“the wife’s amended application”) in which she continued to seek the orders mentioned in the previous paragraph. However in her amended application she joined as parties to the proceedings between herself and the husband, their adult daughter, N, (the second respondent), their adult son, S, (the third respondent) and a company, GD Pty Ltd, (the fifth respondent) and she sought an extensive range of orders and declarations, many of which would affect the interests of the daughter, the son or the company. I will later set out the terms of those orders and declarations.
On 18 August 2006 the second, third and fifth respondents filed an application seeking the summary dismissal of “paragraphs 5, 6 and 7” of the orders sought by the wife in her amended application filed on 6 June 2006 “in so far as they affect the second, third and fifth respondents”. (Where necessary, I will in these reasons refer to the second, third and fifth respondents collectively as “the third parties”.)
It was only possible for that application for summary dismissal to be heard by me…

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 Custodio v Pinto & Ors

Details

AGLC: Custodio v Pinto & Ors [2006] FamCA 941
Case: [2006] FamCA 941
Decision Date: 1 September 2006

CaseChat Overview and Summary

In *Custodio v Pinto & Ors*, the Supreme Court of the Australian Capital Territory considered a dispute concerning the ownership of a property at 14 O'Hanlon Place, Nicholls, ACT. The applicant, Mr. Custodio, sought to have a caveat lodged by the respondents, Mr. and Mrs. Pinto, removed from the title of the property. The respondents claimed an equitable interest in the property arising from an alleged agreement for sale.

The central legal issue before the Court was whether the respondents had established a sufficient equitable interest in the property to justify the continued presence of the caveat. This required the Court to determine whether there was a concluded agreement for the sale of the property, and if so, whether that agreement created an equitable interest that bound the registered proprietor.

The Court analysed the correspondence and conduct of the parties to ascertain if a binding agreement had been reached. It applied principles of contract law, particularly regarding offer, acceptance, and intention to create legal relations, as well as principles of equity concerning the creation of equitable interests in land. The Court found that the evidence did not demonstrate a concluded agreement for sale that would give rise to an equitable interest in the respondents.

Consequently, the Court ordered that the caveat lodged by the respondents be removed from the title of the property at 14 O'Hanlon Place, Nicholls, ACT.

Orders