Edgar & Edgar

Case [2024] FedCFamC1F 332

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Edgar & Edgar [2024] FedCFamC1F 332

File number: SYC 6432 of 2023
Judgment of: HARTNETT J
Date of judgment: 17 May 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Joinder application – Application for anti-suit injunction – Where the parties own property subject to three registered mortgages in favour of a third party – Where there is default under the mortgages – Where the third party has issued proceedings in the Supreme Court of New South Wales for possession of the property – Where the wife claims no liability in respect of the mortgages – Where not necessary for the joinder of the third party – Where appropriate for the Supreme Court of New South Wales to determine that matter – Application dismissed – Costs of the third party to be paid by the wife – No joinder of the third party.
Legislation:

Corporations Act2001 (Cth) s 9

Family Law Act 1975 (Cth) ss 79, 90AE, 90AF, 114, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 3.03

Federal Magistrates Court Rules 2001 (Cth) r 11.01

Real Property Act 1900 (NSW) ss 42, 57

Cases cited:

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

Daire and Gamer [2021] FedCFamC1F 261

Riemann v Riemann (No 3) [2017] FamCA 911

Wayne & Dillon & Anor [2008] FamCAFC 204

Division: Division 1 First Instance
Number of paragraphs: 71
Date of hearing: 3 May 2024
Place: Heard in Sydney, delivered in Melbourne
Counsel for the Applicant: Mr Maroya
Solicitor for the Applicant: Ramsden Family Law
Counsel for the Respondent: Ms Edwards
Solicitor for the Respondent: PW Lawyers
Counsel for the Other: Mr Walsh
Solicitor for the Other: Crompton Walsh Commercial Lawyers

ORDERS

SYC 6432 of 2023

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

MR EDGAR

Applicant
AND:

MS EDGAR

Respondent

B LTD

Other

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

17 MAY 2024

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed by the respondent wife on 22 November 2023 be dismissed.

2.The respondent wife pay the costs of the proposed second respondent B Ltd as agreed and failing agreement as determined by the Court.

3.If costs are not agreed within 7 days hereof then the parties are to file and serve written submissions of no longer than 5 pages with B Ltd to file and serve such submissions within 14 days of the date of these orders and the respondent wife to file and serve such submissions within 21 days of the date of these orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court…

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AGLC
Edgar & Edgar [2024] FedCFamC1F 332
Case
[2024] FedCFamC1F 332
Decision Date

CaseChat Overview and Summary

The case of Edgar & Edgar involved an application by the wife, Ms Edgar, seeking an anti-suit injunction and the joinder of B Ltd, a third party, in proceedings concerning property interests. The husband, Mr Edgar, opposed the application and argued that the joinder was unnecessary and that the Supreme Court of New South Wales should handle the matter concerning the third party's claim for possession of property. The legal issues before the court were whether the third party, B Ltd, should be joined in the proceedings and whether an anti-suit injunction should be granted to prevent B Ltd from proceeding with its claim in the Supreme Court.

The court found that it was not necessary to join B Ltd in the proceedings as the matter was appropriately dealt with in the Supreme Court of New South Wales. The court noted that the wife's defence against B Ltd's claim, which involved registered mortgages over property, did not establish a sufficient likelihood of success to warrant the preservation of the status quo pending the trial. The court also concluded that the simultaneous proceedings in two different jurisdictions did not constitute vexatious or oppressive conduct. Consequently, the application for an anti-suit injunction was dismissed, and the wife was ordered to pay the costs of B Ltd.

In summary, the court dismissed the wife's application for an anti-suit injunction and the joinder of B Ltd. The wife was ordered to pay the costs of B Ltd, and the matter concerning the third party's claim for possession of property was left to be determined by the Supreme Court of New South Wales.

Orders

Orders of the court

SYC 6432 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR EDGAR

Applicant

AND:

MS EDGAR

Respondent

B LTD

Other

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

17 MAY 2024

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed by the respondent wife on 22 November 2023 be dismissed.

2. The respondent wife pay the costs of the proposed second respondent B Ltd as agreed and failing agreement as determined by the Court.

3. If costs are not agreed within 7 days hereof then the parties are to file and serve written submissions of no longer than 5 pages with B Ltd to file and serve such submissions within 14 days of the date of these orders and the respondent wife to file and serve such submissions within 21 days of the date of these orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The proposed second respondent, B Ltd, relies upon a Response to an Application in a Proceeding filed 10 April 2024; Points of Defence filed 10 April 2024; an affidavit of David Mark Crompton filed 10 April 2024; and the wife’s Points of Claim filed 5 January 2024. There was further reliance upon written submissions filed 10 April 2024.BRIEF BACKGROUND In 1953, the husband was born. He is aged 70 years. He is retired. In 1959, the wife was born. She is aged 64 years. She is retired. The parties commenced cohabitation in 1980 and were married in 1982. The parties separated on 26 July 2018, 38 years after the commencement of their cohabitation. They were divorced in 2023. There are three children of the relationship, all now of adult age. Relevantly, in or around 1984, the parties purchased the F Street property. The parties and their children lived in the F Street property between 1984 until late 1990, when the family relocated to Country C for the husband’s employment as a manager of then H Ltd (now B Ltd). The F Street property home loan, secured by mortgage to J Ltd, was paid out shortly after the family’s move to Country C. The property was tenanted by the parties whilst the family lived in Country C and following the wife’s return to Australia in or about 2006, and the husband’s return in 2007. Rental receipts were received by the parties from around the time of their departure from Australia. Following the parties’ separation in 2018, the F Street property became occupied by the parties’ son for approximately two and a half years. Thereafter, it again became commercially leased to tenants and is until mid-2024, with rental income of approximately $43,000 being paid to the wife in lieu of spousal maintenance. The husband asserts such monies are insufficient for the wife to meet the parties’ obligations to B Ltd. I note the wife’s evidence that her total income is approximately $65,000. From 1991 to 2007, B Ltd provided housing in Country C to the parties at no cost. In or around 2006, as deposed to by the husband, the parties purchased the D Street property for a purchase price of approximately $1,400,000. The wife has lived in the D Street property since 2006. The husband deposed that the parties borrowed monies from B Ltd to help fund the purchase of the D Street property. B Ltd, he claimed, was able to assist the parties in circumstances where Australian banks were hesitant to lend to the parties due to the husband’s income being received in Country C currency. Otherwise, the parties applied the husband’s savings and the rental receipts from the F Street property to the purchase. The husband does not dispute that he was employed at the time by B Ltd as a senior executive and was authorised to approve the loan on behalf of the mortgagee. The loan advanced was carefully constructed as to the security to be provided by the parties. Since about March 2006, the borrowings have been secured by way of registered mortgage over the D Street property in favour of B Ltd, and in addition, there was further required security in the form of pledges with respect to life and term assurance policies to be held by the husband. On the husband’s evidence, the loan agreement entered into was dated 17 February 2006 and was in writing. It was between the husband and B Ltd. The sum advanced to the husband was 11,500,000 in Country C currency (approximately $508,107.63 Australian Dollars). Interest was payable in respect of the loan advanced with such interest to be paid by monthly instalments. The principal was due to be repaid in December 2012 and January 2013.

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

In equity an applicant for an interlocutory injunction must establish there is a prima facie case in the sense of a serious question to be tried. This means that the wife must at least show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.[4] [4] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65]; Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148 at 153.CONSIDERATION Should the Court refuse the joinder application of the respondent wife, then no question arises in respect of the anti-suit injunction as sought by the wife, though I shall address some of those matters. B Ltd, not being a party to the proceeding in this Court, being a proceeding as to the alteration of property interests between the parties, will proceed with its claim in the Supreme Court of New South Wales as against the parties in circumstances where that action was properly and appropriately commenced. The husband concedes the claim of B Ltd. The wife’s defence to the claim of B Ltd is twofold. Firstly, it goes to whether the registered mortgages secured by the D Street property ought properly to have been registered. The wife asserts that B Ltd is not registered to do business in Australia, and that there is an issue to be determined by the Court as to whether B Ltd received approval from the Foreign Investment Review Board to take an interest in residential land in Australia. Secondly, although the wife does not deny executing the 2006 and 2012 registered mortgages, she makes complaint about the circumstances in which they were executed, described by counsel for B Ltd as “a number of procedural alleged irregularities” to assert that they are not valid and/or enforceable against her.[5] The wife does not make any allegation of fraud as against B Ltd. Consequently, B Ltd submits that the 2006 and 2012 mortgages would be expected to be found indefeasibly good and could not be overturned. Thirdly, the wife denies that she executed the 2015 registered mortgage. She does not allege however, fraud on the part of B Ltd for the purposes of s 42 of the Real Property Act 1900 (NSW) in respect of her claim. It is thus submitted by B Ltd that the 2015 registered mortgage would still be valid against her. As to the wife’s claim that she did not execute the mortgage, B Ltd’s further submission is that all the execution of the three mortgages was witnessed by a solicitor who will give evidence to that effect. [5] Transcript 3 May 2024, p.13 lines 33-34. The proceedings in the Supreme Court of New South Wales are usual proceedings in circumstances where mortgagees, with defaulting mortgagors, seek possession of land which is the subject of registered mortgage security. It cannot be said that such a usual proceeding in the Supreme Court is vexatious or oppressive and nor is it an abuse of this Court’s processes.[6] Further, it cannot be said that the mere existence of simultaneous proceedings in two different jurisdictions is of itself, vexatious or oppressive conduct. [6] CSR Ltd v Cigna Insurance AustraliaLtd (1997) 189 CLR 345 at 400-401.