Dunworth & Falletti

Case [2020] FamCA 178


FAMILY COURT OF AUSTRALIA

DUNWORTH & FALLETTI [2020] FamCA 178

FAMILY LAW – INJUNCTIONS – de facto relationship – dispute about existence of de facto relationship.

JURISDICTION TO GRANT INJUNCTION – especially where court’s jurisdiction has not been established – review of High Court learning on point – power exists.

CRITERIA – whether serious issue to be tried established – held, established –  whether balance of convenience favours the grant of a restraint – held, yes.

SALE OF LAND – whether caveators arm’s length lenders with valid loans to enforce – serious issue to be tried.

SHAM TRANSACTIONS – whether putative loans shams – serious issue to be tried.

UNDERTAKING AS TO DAMAGES – impecunious applicant – no mandatory requirement in all cases that undertaking be proffered – none extracted from applicant.

Family Law Act 1975 (Cth)
Transfer of Land Act 1958 (Vic)
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Allen v Jambo Holdings Ltd [1980] 2 All ER 502
American Cyanamid Co v Ethicon Ltd [1975] AC 396
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425
Banks & Banks [2015] FamCAFC 36
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Blueseas Investments Pty Ltd v Mitchell (1999) 25 Fam LR 65
Deiter v Deiter [2011] FamCAFC 82
DMW v CGW (1982) 151 CLR 491
Eaby & Speelman [2015] FamCAFC 104
Goodridge & Beadle (2017) 57 Fam LR 425
Hazeldell Ltd v Commonwealth (1924) 34 CLR 442
In the Marriage of Yunghanns (1999) 24 Fam LR 400
Karjala & Gallard [2020] FamCA 110
Kennon v Spry (2008) 238 CLR 366
Marvel v Marvel (2010) 43 Fam LR 348
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386
Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq.) (2000) 99 FCR 554
Pollard & Nordberg [2019] FamCA 365
Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398
R v Gray; ex parte Marsh (1985) 157 CLR 351
Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516
Re Macks; ex parte Saint (2000) 204 CLR 158
Re Will of Gilbert (1946) 46 SR (NSW) 318
Redmond & Redmond [2014] FamCAFC 155
Salah & Salah (2016) 56 Fam LR 299
Scott v Federal Commissioner of Taxation (No 2) (1966) 40 ALJR 265
Snook v London and West Riding Investments Ltd [1967] 2 QB 786
SS & AH [2010] FamCAFC 13
Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283
APPLICANT: Ms Dunworth
RESPONDENT: Mr Falletti
INTERESTED PARTIES: Mr B, Ms C & D Pty Ltd
FILE NUMBER: MLC 10450 of 2019
DATE DELIVERED: 20 March 2020
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: The Honourable Justice Wilson
HEARING DATE: 16 & 20 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable
SOLICITOR FOR THE…

Continue reading Dunworth & Falletti

Sign in free to access the full text

Details
AGLC
Dunworth & Falletti [2020] FamCA 178
Case
[2020] FamCA 178
Decision Date

CaseChat Overview and Summary

In this matter before the Honourable Justice Wilson, the applicant sought interlocutory injunctive relief to restrain the respondent from completing the sale of a property. The core of the dispute concerned the existence of a de facto relationship between the parties and the nature of certain financial transactions, specifically whether purported loans were genuine or sham transactions intended to defeat the applicant's potential claims.

The court was required to determine whether it possessed the jurisdiction to grant an injunction, particularly in circumstances where its ultimate jurisdiction had not yet been definitively established. Furthermore, the court had to assess whether the applicant had established a serious issue to be tried and whether the balance of convenience favoured the grant of injunctive relief. The court also considered the status of the caveators as arm's length lenders and the validity of their alleged loans, as well as whether the transactions in question constituted sham transactions.

Justice Wilson reasoned that the court had the power to grant injunctive relief even before its ultimate jurisdiction was established, drawing on High Court authority. The court found that a serious issue to be tried had been established regarding the existence of the de facto relationship, the nature of the financial transactions, and the caveators' positions. The balance of convenience was found to favour the applicant, as the potential harm to her if the sale proceeded and her claims were later successful outweighed the harm to the respondent if the sale was temporarily restrained. The court also noted that while an undertaking as to damages is often required, it was not a mandatory requirement in all cases, and none was extracted from the impecunious applicant.

The court ordered that the respondent be restrained from settling or completing the contract for the sale of the property, and that any deposit paid be retained and not disbursed. Mr B, D Pty Ltd, and Ms C were joined as respondents, and the applicant was directed to file and serve an amended application identifying her claims against them. Directions were also given for the filing of responses by the respondents and for a further hearing.

Orders

Orders of the court

1.

Pending the hearing and determination of this proceeding at trial, or further order, the respondent, his servants or agents is restrained from settling or completing the contract for his sale of E Street, Suburb F pursuant to the contract made between him as vendor and Ms G as purchaser and dated … November 2019.

2.

The respondent must forthwith instruct his servants or agents who may be holding any amount paid by way of deposit to retain that sum and to not disburse any amount whatsoever of that sum until further order.

3.

Mr B, D Pty Ltd and Ms C be and are hereby joined as respondents to this proceeding.

4.

Within 30 days the applicant must file and serve an amended initiating application identifying the claim she makes against each of the newly joined respondents.

5.

Within 60 days of today each respondent is to file and serve a response to the amended initiating application together with any affidavit on which each relies in opposition to the applicant’s claim.

6.

I direct this proceeding is to be further heard before me for mention on a date to be fixed.

Note: The form of the order is subject to the entry of the order 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.