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) |
| 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… |
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- AGLC
- Dunworth & Falletti [2020] FamCA 178
- Case
- [2020] FamCA 178
- Decision Date
CaseChat Overview and Summary
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
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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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