[2006] FamCA 941
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT CANBERRA File No. 872 of 2003
BETWEEN:
Applicant Wife
-and-
WP Respondent Husband
-and-
NP Second Respondent
-and-
SPThird Respondent
-and-
PH PTY LTD Fourth Respondent
-and-
GD PTY LTD Fifth Respondent
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…
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- AGLC
- Custodio v Pinto & Ors [2006] FamCA 941
- Case
- [2006] FamCA 941
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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
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