FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAGAR & MORENO | [2021] FCCA 1271 |
| Catchwords: FAMILY LAW – Property – Application to set aside consent orders – Application for summary dismissal. FAMILY LAW – Property – Application for removal of Caveat. FAMILY LAW – Costs – Application for Indemnity Costs. |
| Legislation: Family Law Act 1975 (Cth), ss.64B, 45A, 79A, 117 Federal Circuit Court Rules2001, r.13.10 |
| Cases cited: Beck & Beck [2004] FamCA 92 |
| Applicant: | MR HAGAR |
| Respondent: | MS MORENO |
| File Number: | BRC 10182 of 2020 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | 4 December 2020 |
| Date of Last Submission: | 4 December 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 10 June 2021 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the Respondent: | Simonidis Steel Lawyers |
ORDERS
That the Amended Initiating Application filed 16 November 2020 be summarily dismissed.
That within sixty (60) days of the date of these orders the Applicant pay the Respondent’s Costs fixed in the sum of $10,403.72.
That within fourteen (14) days of the date of these orders the Applicant, at his sole cost, do all acts and things necessary to remove the caveat having caveat number xxxxx58 over the title of the real property situated at A Street, Suburb B having title reference xxxxx23.
That in the event the Applicant fails, neglects or refuses to do all acts and things necessary to remove the caveat in accordance with order (3) herein, then pursuant to section 106A of the Family Law Act 1975, a Registrar of the Federal Circuit Court of Australia at Brisbane is hereby empowered to sign any and all documents on behalf of the Applicant that may be required to remove the caveat, and for this purpose, an affidavit from the Respondent deposing to the Applicant’s non-compliance shall be sufficient evidence to give rise to this order.
IT IS NOTED that publication of this judgment under the pseudonym Hagar & Moreno is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 10182 of 2020
| MR HAGAR |
Applicant
And
| MS MORENO |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Hagar,…
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- HAGAR & MORENO [2021] FCCA 1271
- Case
- [2021] FCCA 1271
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Applicant's applications to vary or set aside the consent orders should be summarily dismissed, the appropriate orders to be made regarding the removal of a caveat, and the question of costs, including the possibility of indemnity costs. The court was required to consider the principles governing the variation and setting aside of consent orders, particularly in light of the decisions in *Rice v Asplund*.
Judge Lapthorn applied the principles established in *Rice v Asplund* and *Harris v Harris*, which require a high degree of proof to set aside consent orders, demonstrating that the orders were not properly made or that there were significant circumstances that would make it unjust to uphold them. The court found that the Applicant had failed to provide sufficient evidence to warrant setting aside the consent orders or to justify a variation. Consequently, the court determined that the Amended Initiating Application should be summarily dismissed.
The court ordered the summary dismissal of the Applicant's Amended Initiating Application. The Applicant was ordered to pay the Respondent's costs fixed at $10,403.72 within sixty days. Furthermore, the Applicant was directed to remove the caveat over the specified property at his sole cost within fourteen days, with provision made for a Registrar to sign necessary documents should the Applicant fail to comply.
Orders
Orders of the court
1.
That the Amended Initiating Application filed 16 November 2020 be summarily dismissed.
2.
That within sixty (60) days of the date of these orders the Applicant pay the Respondent’s Costs fixed in the sum of $10,403.72.
3.
That within fourteen (14) days of the date of these orders the Applicant, at his sole cost, do all acts and things necessary to remove the caveat having caveat number xxxxx58 over the title of the real property situated at A Street, Suburb B having title reference xxxxx23.
4.
That in the event the Applicant fails, neglects or refuses to do all acts and things necessary to remove the caveat in accordance with order (3) herein, then pursuant to section 106A of the Family Law Act 1975, a Registrar of the Federal Circuit Court of Australia at Brisbane is hereby empowered to sign any and all documents on behalf of the Applicant that may be required to remove the caveat, and for this purpose, an affidavit from the Respondent deposing to the Applicant’s non-compliance shall be sufficient evidence to give rise to this order.
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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