Hoang and Nghiem

[2009] FamCA 803

FAMILY COURT OF AUSTRALIA

HOANG & NGHIEM [2009] FamCA 803

FAMILY LAW  -  PROPERTY  -  amendment of final order under slip rule

Family Law Act 1975 (Cth)

HUSBAND: Mr Hoang

WIFE: Ms Nghiem

THIRD PARTY: Mr Q

FILE NUMBER: MLF 7299 of 2001

DATE DELIVERED: 11 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: BROWN J

HEARING DATE: 11 August, 2009

REPRESENTATION

SOLICITOR FOR THE HUSBAND Oakfair Lawyers

SOLICITOR FOR THE RESPONDENT: Mr. G. McNaught

Orders

1. That paragraph (4) of the amended order dated 3 December, 2007 be further amended by the addition of the following :  “(2) and” after the word “paragraph” which appears on the fourth line of the said paragraph. 

2. That the following paragraph (5A) be included in the amended order, namely :

   (a)Paragraph (5A)(a), “that the Registrar of Titles in the State of Victoria cancel Certificate of Title Volume […] Folio […] containing the land in Lot 1594 on Plan of Subdivision […]”;

   (b)Paragraph (5A)(b), “that the Registrar of Titles create a new folio of the registrar and Certificate of Title for the land in Lot 1594 on Plan of Subdivision […]”;

   (c)Paragraph (5A)(c), “that the Court finds and declares for the purpose of Subsection 27B(6) of the Transfer of Land Act 1958 that the party, [Ms Nghiem], is the person entitled to delivery of the Certificate of Title to be created pursuant to order (5A)(b).

3. That the following paragraph (5B) be included in the amended order, namely :

   (a)Paragraph (5B)(a), “that the Registrar of Titles in the State of Victoria cancel Certificate of Title Volume […] Folio 458;

   (b)Paragraph (5B)(b), “that the Registrar of Titles create a new folio of the Registrar and Certificate of Title for the land presently described in Certificate Volume […] Folio 458;

   (c)Paragraph (5B)(c), “that the Court finds and declares for the purpose of Subsection 27B(6) of the Transfer of Land Act 1958 that the party, [Mr Hoang], is the person entitled to delivery of the Certificate of Title to be created pursuant to order (5B)(b)”.

4. That the reasons for judgment this day be transcribed and copies made available to the parties.

5. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor appearing as counsel.

IT IS NOTED that publication of this judgment under the pseudonym  Hoang & Nghiem is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 7299 of 2001

MR HOANG

Husband

And

MS NGHIEM

Wife

And

MR Q
Third Party

REASONS FOR JUDGMENT

1. Proceedings between the husband, wife and a third party were allocated to my docket in 2007.  On 3 December, 2007, final property orders were made, with the consent of the husband and wife.  The third party did not appear.  An amended order subsequently issued correcting a very minor error in those orders. 

2. Paragraph (3) of the orders required the third party, Mr Q, to transfer to the husband his interest in a property at …, which the order described as being described in Certificate of Title, Volume …, Folio 458. 

3. It is now clear that two certificates of title relate to that property.  The first is that named in paragraph (3) of the orders of 3 December, 2007.  The second is described in Certificate of Title Volume … Folio 459.  It is now known that the second of those parcels of land was already registered in the husband’s name. 

4. An order provided for a registrar to sign all documents in the name of the third party, the court forming the view that it was at best unlikely that Mr Q would ever sign any document.  Recently, it came to the attention of the solicitor for the wife that the husband’s lawyer had made application to the Land Title Office for a replacement Certificate of Title.   

5. The orders made by this court need to be amended in two ways.  The first is to take account of the reality that the land is described in two Certificates of Title.  The second is to facilitate the husband’s registration as proprietor of the land to which he is entitled.  I am grateful to the solicitor for the wife for bringing this matter to the court’s attention.  The husband’s solicitor has been advised of the application which is brought as a result of a requisition from the Land Titles Office.

6. Before the court is a statutory declaration prepared by Mr Jonathan Bloom, a legal practitioner of RB Legal Services, who were requested by Lampe Family Lawyers (the former solicitors for the wife) to implement the terms of the orders insofar as conveyancing matters were concerned.  There is also a statutory declaration sworn by the husband, who is the applicant for the replacement of one duplicate Certificate of Title.

7. I am satisfied that the amendment sought by the solicitor for the wife is necessary.  It in no way impacts on the essence of the orders made;  to the contrary, it is essential if those orders are to be put into effect.  I am satisfied the court should make orders as set out in the minute tendered by the solicitor for the wife, pursuant to the slip rule. 

I certify that the preceding
7  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.