Friar and Friar and Anor - [2013] FamCA 121

FAMILY COURT OF AUSTRALIA

FRIAR & FRIAR AND ANOR

[2013] FamCA 121

FAMILY LAW – PROPERTY – where the wife seeks a declaration that she and the husband are the sole owners of a property which was registered in the names of the husband and his sister as tenants in common – where the property has been sold – where the wife claims that there was a joint endeavour between she, the husband and his sister the effect of which was that she and the husband were the owners of the property – where the wife alternatively claims that she was induced by statements of the husband and his sister to believe that she would have a beneficial interest in the property and acted to her detriment in reliance on those statements – whether a declaration should be made as sought by the wife – where the evidence does not reveal a joint endeavour or common intention – where the statements alleged by the wife to have induced her to act to her detriment are unclear and ambiguous – where the wife’s claim for declaration dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Baumgartner v Baumgartner (1987) 164 CLR 137
Commonwealth v Verwayen (1990) 170 CLR 394
Galaxidis v Galaxidis [2004] NSWCA 111
Giumelli v Giumelli (1999) 196 CLR 101
Legione v Hateley (1983) 152 CLR 406
Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475
Muschinski v Dodds (1985) 160 CLR 583
Stanford v Stanford (2012) 293 ALR 70
Turner v Dunne [1996] QCA 272
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Waterhouse v Power [2003] QCA 155

APPLICANT:

Ms R Friar

FIRST RESPONDENT:

Mr C Friar

SECOND RESPONDENT:

Ms W Friar

FILE NUMBER:

SYC

6808

2007

DATE DELIVERED:

1 March 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Murphy J

HEARING DATE:

Sydney: 1 March 2012

Sydney: 2-4 July 2012
Videolink: 7 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pentalow

SOLICITOR FOR THE APPLICANT:

Friend & Co Lawyers

THE FIRST RESPONDENT:

In person

COUNSEL FOR THE

SECOND RESPONDENT:

Mr Windsor SC

SOLICITOR FOR THE

SECOND RESPONDENT:

Hamish Cumming Family Lawyers

Orders

IT IS ORDERED THAT

The wife’s claim for declaration pursuant to s 78 of the Family Law Act 1975 (Cth) (“the Act”) contained at paragraph 1 of the Amended Application filed
25 August 2011 be dismissed.
Any claim for equitable relief by the wife contained within the Points of Claim filed 26 August 2008 be dismissed.

IT IS DIRECTED THAT

The wife’s claim seeking relief pursuant to s 79 of the Act be listed for mention before Justice Murphy via videolink on a date and time to be advised consequent upon the parties, within 28 days of the date of these Orders, complying with the succeeding paragraphs (4) and (5) of these Orders.
The parties shall confer and seek to agree upon the making of all such further directions as might be necessary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FamCA 121
Decision Date

CaseChat Overview and Summary

In *Friar and Friar and Anor* [2013] FamCA 121, the Family Court of Australia considered a wife's claim for a declaration of sole ownership of a property registered in the names of her husband and his sister. The property had been sold, and the wife asserted a joint endeavour between herself, her husband, and his sister, which she contended established her and her husband as the owners. Alternatively, she claimed she was induced by statements from the husband and his sister to believe she had a beneficial interest in the property and acted to her detriment in reliance on those statements.

The primary legal issues before the Court were whether a joint endeavour existed that would grant the wife a beneficial interest in the property, and alternatively, whether the wife's reliance on ambiguous statements from the husband and his sister, to her detriment, gave rise to an equitable interest. The Court was required to determine if the wife's claims for a declaration of ownership and equitable relief could be substantiated based on the evidence presented.

Justice Murphy dismissed the wife's claim for a declaration of ownership and her claims for equitable relief. The Court found that the evidence did not establish a joint endeavour or a common intention between the parties regarding ownership of the property. Furthermore, the statements alleged by the wife to have induced her to act to her detriment were found to be unclear and ambiguous, failing to meet the threshold for establishing an equitable interest.

Consequently, the wife's claim for a declaration pursuant to s 78 of the *Family Law Act 1975* (Cth) was dismissed. Any claims for equitable relief were also dismissed. The Court ordered that the wife's claim for relief pursuant to s 79 of the Act be listed for mention, with directions for the parties to confer on further submissions regarding recent High Court decisions and the requirements of s 79, including the derivation of interests, contributions, and the justice and equity of any proposed orders.

Orders