Green and Wall - [2019] FamCA 76

FAMILY COURT OF AUSTRALIA

GREEN & WALL

[2019] FamCA 76

FAMILT LAW – CAVEAT – caveat lodged by husband before final property orders which resolved issues on ownership – husband does not participate – order for removal of caveat directed to Registrar of Titles – where that order can be made either by reference to the definition of “court” as a “court of competent jurisdiction” or alternatively using the powers conferred by the accrued jurisdiction.

Family Law Act 1975 (Cth)
Transfer of Land Act 1958 (Vic)

ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559
F Firm & Ruane and Ors [2014] FamCAFC 189
Piroshenko v Grojsman & Ors [2010] VSC 240
Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36

APPLICANT:

Ms Green

RESPONDENT:

Mr Wall

FILE NUMBER:

MLC

9764

2014

DATE DELIVERED:

22 February 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

20 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Green in person with Mr Puckey of Counsel as Amicus Curiae

THE RESPONDENT:

No Appearance

Orders

Pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic), the Registrar of Titles for Victoria is directed to remove caveat … lodged on 10 December 2014 on Certificate of Title Vol … Folio … by P Lawyers on behalf of Mr Wall, the basis of the order being that as a result of the court’s order on 27 April 2016, the said Mr Wall no longer has a caveatable interest in the said property.
That a copy of the reasons and orders this day shall be served by email upon the said Mr Wall and provided in due course to the Registrar of Titles.
That the service upon the husband be at his last known email address.
That the application in a case filed 8 January 2019 be otherwise dismissed.
That the reasons be published as soon as possible.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Green & Wall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9764 of 2014

Ms Green

Applicant

And

Mr Wall

Respondent

REASONS FOR JUDGMENT

Final property orders were made on 27 April 2016 by Macmillan J in proceedings between Ms Green (“the wife”) and Mr Wall (“the husband”). It is significant that with the assistance of their respective counsel, those orders were made by their consent.
The present proceedings arise out of those orders which, on any view, have not been…

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.

Continue reading Green and Wall

Details

AGLC: Green and Wall [2019] FamCA 76
Case: [2019] FamCA 76
Decision Date: 22 February 2019

CaseChat Overview and Summary

In the Supreme Court of Victoria, Justice Cronin considered an application by Mr Green seeking the removal of a caveat lodged by Mr Wall over a property. The dispute concerned Mr Wall's continued assertion of an interest in the property, which Mr Green contended no longer existed following a prior court order.

The central legal issue before the court was whether Mr Wall retained a caveatable interest in the property, thereby justifying the continued presence of his caveat. This required the court to examine the effect of its previous order made on 27 April 2016 on Mr Wall's proprietary rights.

Justice Cronin reasoned that the prior court order of 27 April 2016 had extinguished Mr Wall's interest in the property. Consequently, Mr Wall no longer possessed a valid caveatable interest. The court applied the principle that a caveat can only be maintained by a person who has a genuine caveatable interest, and that such an interest must be subsisting at the time of the application.

The court ordered the Registrar of Titles to remove the caveat lodged by Mr Wall on 10 December 2014, as he no longer held a caveatable interest in the property. The application filed on 8 January 2019 was otherwise dismissed.

Orders

Orders of the court

Pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic), the Registrar of Titles for Victoria is directed to remove caveat … lodged on 10 December 2014 on Certificate of Title Vol … Folio … by P Lawyers on behalf of Mr Wall, the basis of the order being that as a result of the court’s order on 27 April 2016, the said Mr Wall no longer has a caveatable interest in the said property.

That a copy of the reasons and orders this day shall be served by email upon the said Mr Wall and provided in due course to the Registrar of Titles.

That the service upon the husband be at his last known email address.

That the application in a case filed 8 January 2019 be otherwise dismissed.

That the reasons be published as soon as possible.

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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