Garrett and Cowell

[2008] FamCA 60

FAMILY COURT OF AUSTRALIA

GARRETT & COWELL [2008] FamCA 60

FAMILY LAW – PROPERTY – Injunction

Family Law Act 1975 (Cth)

APPLICANT: Ms Garrett

RESPONDENT: Mr Cowell

FILE NUMBER: SYF 3566 of 2006

DATE DELIVERED: 5 February 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 5 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

APPLICANT: In person

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. The proceedings are adjourned to the Judicial Registrar’s Call-over at 9:30 am on 12 February 2008.

1. Until 6:00 pm on 12 February 2008 the husband is restrained by himself or his servants or agents from encumbering or otherwise dealing with his interest in the property known as C… in the State of New South Wales, being the property described in Folio …, including but not limited to drawing further upon mortgage … granted to Perpetual Limited and registered on that property.

1. That a sealed copy of these orders be served before 5:00 pm today on the solicitors on the record for the husband, Watts McCray Lawyers and otherwise as the wife may be advised.

1. Any documents on which either party seek to rely be filed and served not later than close of business on Friday, 8 February 2008.

1. Leave to the husband or any person with an interest in the subject property or affected by the orders made today to restore the proceedings to the list on giving 24 hours’ notice to the Court and to the parties.

IT IS NOTED

1. The address for service of the wife is ….

1. That these orders are made on the Undertaking of the wife in the usual form which is Exhibit 1 and attached hereto.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judicial Registrar Loughnan delivered this day will for all publication and reporting purposes be referred to as Garrett and Cowell.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF3566 of 2006

MS GARRETT

Applicant

And

MR COWELL

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for an ex parte injunction in the context of proceedings for settlement of property that have been before the Court, I think, since August 2006.  The application was filed on 4 February, returnable today.  It was listed on the basis that it would be served, and that condition has not been met.

2. The circumstances of the application are that the wife seeks that the husband be restrained in relation to dealing with what she says is matrimonial property.  She says there are proceedings here and in Switzerland.  There were forum proceedings before this Court in which the husband was unsuccessful in having Australia declared to be a clearly inappropriate forum.  There is an appeal in relation to that decision, and a stay has been granted pending the determination of the appeal.

3. The Court record shows each of the parties as being represented by solicitors, the wife by a notice of address for service filed 26 November 2007 by Turner Freeman, and the husband as recently as 21 November 2007 by Watts McCray Solicitors.  The wife says that she has not been served with any Notice of Ceasing to Act on behalf of Watts McCray.

4. Among other things ‑ there is some reference in the judgment of the trial Judge in relation to this ‑ there is a property at C in the name of the husband.  Her Honour noted that the wife says that joint funds are traceable into that property and that the husband argues that he purchased the property prior to the commencement of the parties' relationship for $225,000 and that it had a value of $227,000 when the parties start to live together.

5. The wife has had a caveat placed on the property.  A lapsing notice in relation to the caveat was served on her solicitors in January, and the notice was received by her on 24 January 2008.  Her solicitors, she understands, received the notice on 14 January.  The notice, which is attached to her affidavit, identifies a period of 21 days from service, after which the caveat would lapse.  The wife says she originally had some advice from the Land Titles Office to the effect that there were no problems and there was no need for an urgent injunction from this Court.  She says she has since discovered that that advice is wrong and she suddenly needs to have an injunction granted by a Court. She has been told that would have the same sort of effect as the continuation of the caveat.

6. The requirements of an ex parte order are that there be an arguable case, that there be probative evidence as to why an ex parte injunction would be granted instead of short notice, and that there be an undertaking as to damages.  We are light on everything.  No undertaking as to damages was offered. The wife subsequently provided an undertaking as to damages, which is exhibit 1.  There is no probative case, because there is no evidence which, standing on its own, would support a finding that there is a critical part of the matrimonial property contained in the C property or that in any event a transaction dealing with that property is likely to imperil the wife's claim under s 79. In her application the wife refers to moneys held in a pension fund, moneys held in a share trading account, moneys on deposit in a branch of a Swiss organisation, but there is no independent evidence of those things.  She says that she understands that there is a freezing order in relation to the Swiss account, which she says contains 85,000 Swiss francs.  I simply do not know that it is necessary to grant the order for the purposes of protecting the wife's claim.  That is the basis on which an injunction would be granted.

7. Further, there is no reason why the husband has not been given proper notice.  He has a solicitor on the record.  The caveat did not lapse until today or yesterday, so notice could have been given earlier than today, and, despite the apparent requirement of the Registrar in setting the matter down, and no attempt has been made to give notice to the husband.  The wife says she does not know where the husband is. She does not need to know where he is. There is a solicitor on the record for him.

8. There is authority for the proposition that the lack of an undertaking or lack of capacity to support an undertaking should not be a bar to urgent relief.

9. The question for me it one of balancing risk.  If the wife is right, it may be that the equity in the C property, if there is any equity, is an important asset. It may be that the risks of delaying the husband in dealing with that property for a week are less than the risks that will face the wife if those funds are disposed of.  The order would be made on the usual basis that the husband could bring the matter back on 24 hours notice if he wants to agitate the matter further.  I have some doubts about these proceedings, and an ex parte order is a denial of natural justice.  I have explained to the wife the potential impact of her application. If these orders are made, without notice to the husband, she could expect that the husband would receive similar treatment, again, just on his uncorroborated statements.

10. I will make the orders.  Although there is a notice of address for service by solicitors on behalf of the wife, I think her case is that she no longer instructs those attorneys.  So she needs to provide an address for service so that documents can be served on her.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  11 February 2008