Danks & McCabe

Case [2022] FedCFamC1F 960

Federal Circuit and Family Court of Australia

(DIVISION 1)

Danks & McCabe [2022] FedCFamC1F 960

File number(s): MLC 4677 of 2012
Judgment of: HARTNETT J
Date of judgment: 6 December 2022
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Harman Undertaking – Where the parties are engaged in proceedings in the Supreme Court of Victoria relating to a caveat lodged by the respondent – Where the release of documents is sought – Where the implied undertaking applies to the documents – Where special circumstances exist which would justify release from the implied undertaking – Order made.
Legislation:

Family Law Act 1975 (Cth) ss 90SM, 90SN

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.04

Transfer of Land Act 1958 (Vic) ss 90(3), 118

Cases cited:

Dunn & Dunn (No 2) [2022] FedCFamC1F 76

Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613

Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) (1995) 183 CLR 10

Harman v Secretary of State for Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125

Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283

Piroshenko v Grojsman (2010) 27 VR 489

Riddick v Thames Board Mills Ltd [1977] QB 881

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

Division: Division 1 First Instance
Number of paragraphs: 37
Date of hearing: 9 November 2022
Place: Melbourne (via videolink)
Counsel for the Applicant: Mr Fuller
Solicitor for the Applicant: Lampe Family Lawyers
The Respondent: Litigant in person

ORDERS

MLC 4677 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MCCABE

Applicant
AND:

MR DANKS

Respondent

order made by:

HARTNETT J

DATE OF ORDER:

6 DECEMBER 2022

THE COURT ORDERS THAT:

1.The applicant and her legal advisers, and the respondent, be relieved of the implied undertaking provided by each of them to this Court with respect to the use of the following documents (“the Documents”) produced under compulsion in this proceeding and its related appellate proceedings (being MLC 4677 of 2012, SOA 89 of 2012, SOA 71 of 2013, SOA 89 of 2014 and SOA 89 of 2016) (“the Proceedings”):

(a)The respondent’s documents:

(i)all Applications including Amended Applications (including Initiating Applications, Applications in an Appeal, Enforcement Applications, Contravention Applications and Applications in a Case filed in the Proceedings);

(ii)Notices of Appeal including Amended Notices of Appeal filed in the Proceedings;

(iii)any affidavit sworn or affirmed and filed in the Proceedings;

(iv)his affidavit filed in the Proceedings on 2 November 2022;

(v)any written submissions and summaries of argument filed in the Proceedings.

(b)The applicant’s documents:

(i)Application in a Case filed 19 August 2014 in the Proceedings;

(ii)her affidavits sworn 18 August 2014 filed 19 August 2014, sworn 31 August 2016 filed 1 September 2016, and sworn 27 September 2022 filed 30 September 2022; and

(iii)affidavit of Mr B filed on behalf of the applicant on 31 October 2012.

(c)Other documents:

(i)Any orders and Reasons for…

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Details
AGLC
Danks & McCabe [2022] FedCFamC1F 960
Case
[2022] FedCFamC1F 960
Decision Date

CaseChat Overview and Summary

The case of Danks & McCabe concerns a dispute between the parties regarding the ownership of a property located in Suburb F, Victoria. The applicant, who was in a de facto relationship with the respondent from approximately 1998 to April 2010, purchased the Suburb F Property in her sole name in early 2003. After the separation, the respondent lodged a caveat on the property, claiming that the applicant held the property on constructive trust for him. This dispute has resulted in multiple legal proceedings and appeals between the parties over the years. The legal issues before the court included the validity of the respondent's claim to the property, the enforcement of property orders, and the interpretation of the relevant legislation and case law.

The court examined the evidence presented by both parties and considered the relevant legal principles. The court found that the respondent's claim to the property was not supported by the evidence and that the applicant held the property in her sole name. The court also considered the history of the proceedings and appeals between the parties, and found that the respondent's attempts to challenge the property orders and seek injunctive relief were not successful. The court concluded that the respondent's claims were without merit and dismissed them.

Based on the court's findings, it made orders dismissing the respondent's claims and costs orders against the respondent. The court also noted that the respondent had previously sought special leave to appeal to the High Court, which was dismissed with costs. The court emphasised the importance of respecting the finality of property orders and the need for parties to abide by the decisions of the court.

Orders

Orders of the court

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Background

Background to the litigation

The respondent relied on the following material:(1)Response to an Application in a Proceeding filed 2 November 2022; and(2)his affidavits filed 2 November 2022 and 6 November 2022.Background The relevant background was helpfully set out in the outline of case document filed by the applicant on 2 November 2022. I set out that background in the following paragraphs. The parties were in a de facto relationship from in or around 1998 until their separation in or around April 2010. During cohabitation in or about early 2003, the applicant purchased real property situated at E Street, Suburb F in the State of Victoria (“the Suburb F Property”) in her sole name. Such purchase was assisted by a bank loan as taken out solely by the applicant. On 18 May 2012, being approximately two years post the parties separation, the respondent lodged a caveat on the Suburb F Property. The interest claimed in the caveat alleged that the applicant held the Suburb F Property on constructive trust for the respondent. On 25 May 2012, the respondent issued proceedings for final property orders in the then Federal Magistrates Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)). Final property orders were made by consent on 15 August 2012. On 22 October 2012, the respondent filed an Application in a Case to enforce the orders made 15 August 2012. That application was dismissed by Federal Magistrate Turner on 16 November 2012. The respondent subsequently appealed the dismissal of his enforcement application to the Full Court of the Family Court of Australia (“the Full Court”) on 11 December 2012. On 20 January 2014, the Full Court dismissed the appeal with costs. On 29 September 2015, the respondent sought special leave to appeal that decision to the High Court of Australia (“the High Court”). On 17 December 2015, the respondent’s special leave application was dismissed. On 28 December 2012, the respondent filed a Contravention Application in the then Federal Magistrates Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2), alleging a contravention by the applicant of the final orders made 15 August 2012. He subsequently withdrew that application. On 27 September 2013, the respondent filed an Application in a Case in the then Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)) seeking injunctive relief. On 7 October 2013, Connolly J made orders for the collection of the respondent’s personal property as located on the Suburb F Property, and otherwise dismissed the application. On 4 November 2013, the respondent appealed Connolly J’s orders to the Full Court. The appeal was partially successful and on 9 May 2014, the Full Court made orders setting aside some of the primary judge’s orders, and otherwise re-exercised the discretionary power. The respondent was ordered to pay the applicant’s costs. On 3 February 2014, the respondent filed another Contravention Application in the then Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia (Division 2)) alleging a contravention of the final orders. On 7 April 2014, by Application in a Case, the respondent sought to join the applicant’s lawyers to the proceeding. On 13 June 2014, Turner J dismissed the respondent’s joinder application with costs. On 1 September 2014, Turner J dismissed the Contravention Application with costs. The respondent subsequently appealed the Contravention Application dismissal to the Full Court on 8 September 2014. The appeal was partially successful, and on 15 September 2014, the Full Court set aside one of the orders made by Turner J, which was in relation to one count of contravention as alleged. On 25 September 2014, the Full Court remitted that single count to the then Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia (Division 2)) for re-hearing by a judge other than Turner J. The respondent sought, on 12 October 2015, special leave to appeal the decision of the Full Court to the High Court. In mid-2016, the High Court dismissed the special leave application with costs.

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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