Hammerton v Gleeson - [2009] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Civil)
HAMMERTON v GLEESON
[2009] SASC 79
Reasons for Decision of The Honourable Justice Sulan
31 March 2009
PROCEDURE - COSTS - SECURITY FOR COSTS
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES - JOINDER OF PARTIES
REAL PROPERTY - GENERAL PRINCIPLES - INCIDENTS OF ESTATES AND INTERESTS IN LAND - JOINT TENANCY AND TENANCY IN COMMON - INCIDENTS - JOINT TENANCY
Third party application to lift charging order over property of which she and husband are joint tenants - order made by a Master of Supreme Court as security for costs subject of consent allocatur entered into by husband - Master refused third party's application - appeal and fresh application to Supreme Court Justice - whether third party has an interest in action by vitue of holding a joint tenancy to which charging order attaches - whether charging order prejudiced third party - whether any legal basis to set aside charging order over property jointly held where one owner only is the subject of that order.
Held: for limited purposes of challenging charging order third party an interested party under the Rules - appeal and application dismissed - charging order does not affect third party's interest in the jointly held property - charging order does not affect any unities of joint tenancy - court may make charging order over jointly held property where only one owner of the property is the subject of the order.
De Facto Relationships Act 1996 s 9; Enforcement of Judgments Act 1991 s 5, s 8; Supreme Court Civil Rules 2006 r 89, referred to.
Andersons Solicitors v Schigulski [2004] SASC 21, applied.
H v G [2005] SASC 344, considered.

HAMMERTON v GLEESON
[2009] SASC 79
Civil

SULAN J: This is an application by Dr Marmanidis, the wife of the appellant, Dr Hammerton, to intervene in these proceedings for the purpose of appealing a Master’s refusal to lift a charging order made against property jointly owned by Dr Marmanidis and Dr Hammerton.
Background
Proceedings were instituted between Dr Hammerton and his former de facto partner, Ms Gleeson in 2004 and tried in the District Court. The respondent, Ms Gleeson, the plaintiff before the District Court, instituted proceedings against Dr Hammerton, the defendant at first instance, pursuant to s 9 of the De Facto Relationships Act 1996, following the break down of their relationship. On 8 October 2004, judgment was entered for the plaintiff. That judgment included an order that Dr Hammerton pay Ms Gleeson her costs of the action to be taxed, if not agreed, on a party-party basis. On 21 October 2004, Dr Hammerton instituted an appeal to the Full Court of this Court. Ms Gleeson cross-appealed. The appeal and cross-appeal were dismissed on 14 September 2005[1] and, on 21 October 2005, the Full Court made the following orders:
1That the appellant do pay 75% of the respondent’s costs of appeal…

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 Hammerton v Gleeson

Details

AGLC: Hammerton v Gleeson [2009] SASC 79
Case: [2009] SASC 79
Decision Date: 31 March 2009

CaseChat Overview and Summary

The case of Hammerton v Gleeson involves a dispute regarding a charging order placed over property jointly held by the third party and her husband. The third party sought to have the charging order lifted, which was initially denied by a Master of the Supreme Court of South Australia. The third party subsequently appealed to the Supreme Court, where the Justice also dismissed her application. The third party argued that the charging order prejudiced her interest in the jointly held property and questioned the legal basis for such an order when only one joint tenant is the subject of the order.

The legal issues before the court included whether the third party had an interest in the action due to her holding a joint tenancy to which the charging order attached, whether the charging order prejudiced her interest, and whether there was any legal basis to set aside the charging order over jointly held property where only one owner of the property was the subject of the order. The court needed to determine if the third party was an interested party for the limited purposes of challenging the charging order and whether the charging order affected her interest in the jointly held property or any unities of joint tenancy.

The court found that for the limited purpose of challenging the charging order, the third party was indeed an interested party under the rules. The appeal and fresh application were dismissed. The court clarified that the charging order did not affect the third party's interest in the jointly held property and did not affect any unities of joint tenancy. It was held that the court may make a charging order over jointly held property where only one owner of the property is the subject of the order. The ruling underscored the limited scope of the third party's interest in the proceedings concerning the charging order.

In conclusion, the orders of the Master and the Justice of the Supreme Court were affirmed. The third party's appeal and fresh application were dismissed, and the charging order remained in place. The court's decision emphasised the distinction between the third party's interest in challenging the order and her interest in the jointly held property itself.

Orders