Lake and Brand (No 2)

[2016] FamCA 945

FAMILY COURT OF AUSTRALIA

LAKE & BRAND (NO 2) [2016] FamCA 945

FAMILY LAW – INJUNCTIONS – Removal of caveat – application by the wife that the husband remove a caveat lodged over a property – where final orders were made that the wife retain the property the subject of the application and the husband remove a caveat previously lodged by him over that property – where due to the husband’s failure to withdraw the caveat in accordance with final orders the wife had to make application for a Registrar to sign a withdrawal of caveat on behalf of the husband – where following the Registrar signing a withdrawal of caveat the husband lodged a new caveat over the property – where the husband seeks to raise issues previously ventilated at the final hearing – where the final orders have not been stayed – removal of caveat intended to give effect to the orders – interim orders made that the husband sign a withdrawal of caveat – interim orders made restraining the husband from lodging further caveats over the property

FAMILY LAW – INJUNCTIONS – Restraint on husband disposing of shares – application by the wife to restrain the husband from disposing of his shares in a company – where there is an outstanding costs order for the husband to pay the wife’s costs – where the wife has a further application for costs against the husband pending judgment – where it is submitted that the wife will be unable to enforce the outstanding costs order and any further order the Court may make with respect to costs if the husband disposes of or deals with the shares – interim orders made restraining the husband from disposing of his shares while monies outstanding to the wife are unpaid

Family Law Act 1975 (Cth)

APPLICANT: Ms Lake

RESPONDENT: Mr Brand

FILE NUMBER: MLC 5385 of 2013

DATE DELIVERED: 26 August 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 26 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Fridey

SOLICITOR FOR THE APPLICANT: Wightons Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. Leave is granted to the wife to amend her application in a case filed 22 August 2016 to seek an order that the respondent by injunction until further order be restrained from transferring, disposing or otherwise dealing with any share held by him in I Pty Ltd (ACN …) whilst any monies owing by the husband to the wife pursuant to any order of this Court remains unpaid.

IT IS FURTHER ORDERED THAT

1. The husband, at the hearing of this Application in a Case, sign a Withdrawal of Caveat No. … lodged over the title to the property known as and situate at D Street, E Town (“E Town”) being Certificate of Title Volume … Folio … and deliver same to the solicitors for the wife. 

2. In the event the husband refuses or neglects to sign such Withdrawal of Caveat referred to in paragraph 2 hereof, a Registrar of the Family Court of Australia is hereby appointed to sign such document on behalf of the husband pursuant to Section 106A of the Family Law Act 1975 (Cth) forthwith thereafter.

3. The husband, by injunction be restrained from lodging any Caveat, dealing, transfer or other document with the Registrar of Land Victoria, any other Government or financial institution which impacts or effects the wife’s ownership or possession of E Town.

4. The husband by injunction, until further Order, be restrained from transferring, disposing or otherwise dealing with any share held by him in I Pty Ltd (ACN …) whilst any monies owing by the husband to the wife pursuant to any order of the Family Court of Australia remain unpaid.

5. The wife shall cause a copy of this Order to be served on the Directors of I Pty Ltd at its registered address by pre-paid mail.

IT IS FURTHER ORDERED THAT

1. By 4.00 pm on 9 September 2016 the wife file and serve any written submissions in support of paragraph 4 of her application in a case filed 22 August 2016.

2. By 4.00 pm on 23 September 2016 the husband file and serve any reply to any written submissions of the wife pursuant to paragraph 7 herein.

3. Paragraph 4 of the wife’s application in a case filed 22 August 2016 be otherwise adjourned to a date to be fixed for judgment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lake & Brand (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5385 of 2013

Ms Lake

Applicant

And

Mr Brand

Respondent

REASONS FOR JUDGMENT

1. The application listed before me this day is the wife’s Application in a Case filed on 22 August 2016 in which she seeks orders:

   ·that the husband sign a withdrawal of caveat number … lodged over the property known as and situated at D Street, E Town (“the E Town property”); 

   ·that the Registrar be authorised to sign that withdrawal of caveat in the event that the husband fails to do so; and

   ·that the husband be restrained by injunction from lodging any caveat, dealing, transfer or other document with the Registrar of Land Victoria with respect to the E Town property.

2. The wife also made an oral application in which she sought to amend that application to include an order restraining the husband from disposing of or dealing with any shares held by him in I Pty Ltd or the I Group in order to secure payment of outstanding costs. 

3. On 20 May 2016, I published my reasons and made orders for final property settlement, including an order which required the husband to withdraw the caveat he had lodged over the E Town property at that time.

4. Pursuant to my orders, the wife was to retain her interest in the E Town property registered in her name, subject to paragraph 7 of those orders which provided that she be solely responsible for all payments due and payable in respect of mortgage number … to the Commonwealth Bank of Australia (“CBA”) and all rates, taxes and outgoings with respect to the property.  The husband did not provide a withdrawal of the caveat he had lodged over the title to the E Town property, as he was required by the orders to do by 4.00 pm on 27 May 2016. 

5. On 27 June 2016, pursuant to paragraph 11 of the orders made on 20 May 2016, the wife’s solicitor filed an Affidavit setting out the particulars of the husband’s default and the withdrawal of caveat was signed by a Registrar of this Court.  The wife deposes at paragraph 10 of her Affidavit filed 22 August 2016, and it is not disputed by the husband, that on 22 July 2016 she received notification from the Department of Environment, Land, Water and Planning that the husband had lodged a further caveat over the title to the E Town property.

6. The caveat refers to a CBA home loan in the names of the husband and the wife signed by the husband on 29 February 2012 and secured over the E Town property and the registration of the mortgage and transfer of title of that property occurring on 30 March 2012.  Although not easy to follow, in summary, the husband’s case is that he has lodged the caveat to secure his interest in the property in circumstances where he asserts that the wife has acted fraudulently in securing the registration of the property in her name, rather than as trustee for the Lake-Brand Property Trust and secured his agreement to the purchase of the property and the mortgage in circumstances, he says, when it was clear, based upon the date upon which the wife signed a costs agreement with her solicitors, that the parties were, in effect, already separated, or that the marriage had come to an end.

7. The difficulty with the husband’s case is that ownership of the E Town property and the date of separation, for that matter, were not only issues raised at trial, but the matter has been heard and final orders made and, albeit the husband has filed a Notice of Appeal, there has been no stay of the orders.  In my view, the lengthy Affidavit filed by the husband on 25 August 2016 was an attempt to revisit matters which were canvassed in the course of the final hearing before me and subject to my findings.

8. This is not the first time the wife has had to file an application in order to have the husband withdraw a caveat.  The first occasion was in June 2014 when she sought orders for the removal of a caveat lodged by the husband over the title to a property in C Town in order to effect settlement of the sale of that property.  Although the Court made an order requiring the husband to provide a withdrawal of that caveat, as with the orders made on 20 May 2016, the husband failed to comply and it was necessary for the Registrar to sign that withdrawal in lieu of the husband.

9. Although the husband says he now understands that the Court cannot revisit the matters it has already determined and that it is for the Full Court of this Court to determine whether or not the decision is upheld, he still says that he will not sign the withdrawal of caveat.  The husband also submitted that this Court does not have the power to withdraw the caveat.  That, of course, is not what the wife seeks.  The wife seeks an order directing the husband to provide her with a withdrawal of the caveat in order to give effect to the intent of the orders made on 20 May 2016 and then, if he refuses to do so, the Registrar sign that withdrawal of caveat on his behalf.

10. I am satisfied that I should make that order.  The clear intent of my orders, as set out in my Reasons for Judgment delivered 20 May 2016, is that the wife should retain the E Town property.  Whilst those orders remain in force, as they do, she is entitled to the benefit of them.  The husband does not on the basis of my orders have any interest in the E Town property. 

11. The wife also seeks an order restraining the husband from lodging any further caveats or dealing with the title to the E Town property.  In circumstances where it has already been necessary for the wife to make two applications for the withdrawal of caveats and assuming, as he says, the husband will not sign the withdrawal of caveat on this occasion, the Registrar will have signed withdrawals of caveats in his stead on three occasions. In circumstances where the husband, pursuant to my orders, has no interest in the E Town property, I am satisfied that it would be proper to make the orders the wife seeks.

12. Not only does the husband not have any interest in the property, since the Court made final orders and notwithstanding that those orders required the wife to be responsible for the mortgage and indemnify the husband, the wife has repaid the mortgage in the joint names of the parties over the E Town property and refinanced that mortgage in her sole name. 

13. Not only am I satisfied that the wife should have the benefit of the orders that were made on 20 May 2016 I am satisfied that she should do so without the necessity of having to make further applications to the Court to have the husband withdraw any further caveats he might lodge over the title to the E Town property, and secure in the knowledge that the property is hers to deal with as she sees fit.

14. Finally, the wife sought to amend her application for the purposes of seeking an injunction restraining the husband from dealing with or disposing of the share he owns in the I Group.  It is correct, as submitted by the husband, that pursuant to the final orders made on 20 May 2016 he is entitled to that share. However, it is also the case, as submitted by the wife’s solicitor, that there are both outstanding costs orders, in particular the order that the husband pay the wife’s costs fixed in the sum of $8,000 made by Johns J on 11 November 2014 and an outstanding application with respect to the costs of the final hearing which awaits the outcome of the appeal and the husband has deposed and has submitted that he does not have the capacity to satisfy any order for costs. 

15. The wife submits that if the husband disposes of his share in the I Group she will have no capacity, in that the husband now says he has no other assets of value, to enforce any outstanding orders for costs and any further order the Court might make with respect to the costs of the final hearing before me.  That submission has some merit, given the evidence of the husband in his Affidavit filed 13 July 2016.

16. The husband submitted that even though his one share is only worth $1, he objects in principle to the Court making the order the wife seeks.  Although the husband asserts that he holds only one share in the I Group, which he says is valued at $1, it is the wife’s case, and I found, that the husband’s interest in the I Group which derives from his ownership of that share was worth approximately $509,000.

17. In all of the circumstances, I am satisfied that it is proper to make the order the wife seeks, however, I am satisfied that the order should be made until further order.  This will give the husband the opportunity to apply to the Court in the event that he has a legitimate reason for either disposing of or dealing with any shares he holds in the I Group.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 26 August 2016.

Associate: 

Date:  26 September 2016