Darmody and Sinton and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

DARMODY & SINTON & ANOR [2017] FCCA 2238

Catchwords:
FAMILY LAW – De facto property proceedings – joinder of third party – whether joinder of a registered mortgagee is necessary to effect a just and equitable settlement between the parties to a de facto relationship – if not, whether the Respondent ought to indemnify the Applicant against any losses she suffers as a result of defaulting on the mortgage loan.

Legislation:

Family Law Act 1975 (Cth), ss.114(3), 90AF(1), 90AF(2), 114

Federal Circuit Court Rules 2001, r.11.01

Gee & Luxford & Anor [2015] FCCA 2944
Wayne & Dillon & Anor [2008] FamCAFC 204

Applicant: MS DARMODY

Respondent: MR SINTON

Proposed Second Respondent: MR WATSON

File Number: MLC 12526 of 2016

Judgment of: Judge Small

Hearing date: 7 September 2017

Date of Last Submission: 7 September 2017

Delivered at: Melbourne

Delivered on: 8 September 2017

REPRESENTATION

Counsel for the Applicant: Mr Byrne

Solicitors for the Applicant: Nicholas P Byrne

Counsel for the Respondent: Mr Salamanca

Solicitors for the Respondent: Stephen Farmer & Associates

Counsel for the Proposed Second Respondent: Mr Laidlaw

Solicitors for the Proposed Second Respondent: Gleeson & Co T/A Moama Law

ORDERS

1. The Application in a Case filed 1 August 2017 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Darmody & Sinton & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 12526 of 2016

MS DARMODY

Applicant

And

MR SINTON

Respondent

And

MR WATSON

Proposed Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These are de facto property settlement proceedings between Ms Darmody (“the Applicant”) and Mr Sinton (“the Respondent”).

2. On 1 August 2017 the Applicant filed an Application in a Case in which she sought the following orders:

   1.Stay of proceedings now proposed by MR WATSON of (omitted) as THIRD PARTY to this application, as a registered mortgagee, to sell property being the residence and property of the APLICANT (sic) situate and known as Property A (sic), pursuant to the claimed rights as mortgagee under an instrument of mortgage registered number (omitted) secured over that property, in respect of the principal sum of $200,000 and interest, until such time as this honourable Court may determine, pending or following the outcome of proceedings brought by the Applicant against the Respondent for a financial settlement.

   2.That the Respondent MR SINTON indemnify the Applicant MS DARMODY  in respect of all economic losses and damages sustained or now potentially to be suffered by the Applicant, in the event of this honourable Court electing not to grant the stay sought in paragraph no. 1 preceding, arising out of the Applicants (sic) position as a defaulting mortgagor, including any damages sustained as a consequence of the displacement of the applicant and her family arising from the potential loss of her home before hearing of her claim against the Respondent for a financial settlement, being the subject property of the Third Party’s threatened…