Hien & Waldron (No 2) - [2022] FedCFamC2F 1588

Federal Circuit and Family Court of Australia
(DIVISION 2)
Hien & Waldron (No 2) [2022] FedCFamC2F 1588

File number(s): ADC 1763 of 2021

Judgment of: JUDGE McGINN

Date of judgment: 18 November 2022

Catchwords: FAMILY LAW – interim injunction – joinder – de facto relationship – third parties – equitable claims – arguable case – balance of convenience – articulation of primary relief sought – terms of Initiating Application and affidavit – undertaking as to damages – injunction granted – case management – direction as to amendment

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Blueseas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92–856

Craig v Craig [2015] SADC 109

Hancock Family Memorial Trust Foundation Ltd v Porteous [1999] WASC 55; 32 ACSR 124; 151 FLR 191

Hatton, VF v Attorney-General of Commonwealth of Australia, Commonwealth Bank of Australia, and Commonwealth Development Bank of Australia (2000) FLC 93-038

Norton & Locke (2013) FLC 93-567

Wayne & Dillon and Anor [2008] FamCAFC 204

Waugh and Waugh (2000) FLC 93–052

Yunghanns & Ors v Yunghanns & Ors (1999) FLC 92-836

Heydon JD and Leeming MF, Jacobs Law of Trusts in Australia (7^th ed, LexisNexis Australia, 2006)

Principles of the Law of Trusts (2^nd ed, Sydney Law Book Company, 1990)

Division: Division 2 Family Law

Number of paragraphs: 107

Date of last submission/s: 12 October 2022

Date of hearing: 12 October 2022

Place: Adelaide

Counsel for the Applicant: Mr Dillon

Solicitor for the Applicant: Stevens Law

The First Respondent: Mr B Waldron in person

Counsel for the Second Respondents and for C Street, Suburb D Pty Ltd: Ms Bailey

Solicitor for the Second Respondents and for C Street, Suburb D Pty Ltd: Stanley & Co Lawyers
ORDERS

ADC 1763 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HIEN

Applicant

AND:
MR WALDRON

First Respondent

MS WALDRON and MR B WALDRON

Second Respondents

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE McGINN

DATE OF ORDER:

18 November 2022

UPON NOTING the applicant de facto wife's undertaking:
A.to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as the Court may direct) to any person (whether or not that person is a party) affected by the operation of the following orders or this undertaking or any continuation (with or without variation) of the orders and undertaking; and
B.to pay compensation referred to in paragraph A. to the person affected by the order or undertaking.

IT IS ORDERED:
1.That the company C Street, Suburb D Pty Ltd be joined as a party to these proceedings as third respondent.

UNTIL FURTHER OR OTHER ORDER IT IS ORDERED:
2.That the company C Street, Suburb D Pty Ltd be restrained and an injunction be granted restraining that company from selling, encumbering or disposing of its interest in the property known…

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 Hien & Waldron (No 2)

Details

AGLC: Hien & Waldron (No 2) [2022] FedCFamC2F 1588
Case: [2022] FedCFamC2F 1588
Decision Date

CaseChat Overview and Summary

The case of Hien & Waldron (No 2) [2022] FedCFamC2F 1588 involved a dispute between the de facto wife and the de facto husband regarding the ownership of a property. The de facto wife sought an interim injunction to prevent the sale of the property without her consent or an order from the Court. The de facto husband's parents and the company, which held the legal interest in the property, opposed the application. The Court had to decide whether an interim injunction should be granted, whether the de facto husband's parents and the company should be joined as parties to the proceedings, and whether the de facto wife had established an arguable case for a beneficial interest in the property.

The Court found that the de facto wife had an arguable case for a beneficial interest in the property, either through a resulting trust or a constructive trust. The Court also found that the balance of convenience favoured the granting of an interim injunction to prevent the sale of the property. The Court granted the de facto wife's application for an interim injunction in modified terms, subject to her providing an undertaking as to damages. The Court also ordered that the de facto husband's parents and the company be joined as parties to the proceedings, and that the de facto wife amend her application to provide particulars of her equitable claim. The Court reserved the question of costs until the trial or until the de facto wife complied with certain orders.

In conclusion, the Court granted the de facto wife's application for an interim injunction, ordered the joinder of the de facto husband's parents and the company as parties, and directed the de facto wife to amend her application and provide particulars of her equitable claim. The Court also reserved the question of costs until the trial or until the de facto wife complied with certain orders. The case highlights the importance of pleading equitable claims with particularity and the need for parties to join all necessary parties to ensure that all issues in dispute can be determined by the Court.

Orders