LYNDALL & LYNDALL - [2020] FamCA 481

FAMILY COURT OF AUSTRALIA

LYNDALL & LYNDALL

[2020] FamCA 481

FAMILY LAW – PROPERTY – Interim application – interim orders providing for the sale of a property in effect since 2018 - orders sought for the removal of a caveat lodged over that property by the second respondent – where the husband and second respondent have been on notice of the wife’s application to remove the caveat for in excess of seven months – where the husband and second respondent both assert that the wife does not have a legal right to sell the property and that the second respondent has a right to ownership of the property – where is found that in circumstances where no appeal of the 2018 orders has been sought, the wife is within her rights to seek orders which would have the effect of facilitating the sale of the property – where it is found the second respondent has not discharged the onus on her to demonstrate that there is a serious question to be tried, that it is fairly arguable that she has a caveatable interest in the land, and that the balance of convenience favours the retention of the caveat on the title – orders made to remove the caveat and to give effect to the sale of the property

Family Law Act 1975 (Cth)

APPLICANT:

Ms Lyndall

RESPONDENT:

Mr Lyndall

SECOND RESPONDENT:

Ms B Lyndall

THIRD RESPONDENTS:

Mr C Lyndall &
Ms C Lyndall

FOURTH RESPONDENTS:

Mr D Lyndall &
Ms D Lyndall

FILE NUMBER:

MLC

5609

2018

DATE DELIVERED:

27 May 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

27 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Carne

SOLICITOR FOR THE APPLICANT:

Davison Family Lawyers

COUNSEL FOR THE RESPONDENT:

Self-represented

SOLICITOR FOR THE RESPONDENT:

Self-represented

REPRESENTATIVE FOR THE SECOND RESPONDENT:

Mr H

SOLICITOR FOR THE SECOND RESPONDENT

Self-represented

COUNSEL FOR THE THIRD RESPONDENTS:

Mr Skilton

SOLICITOR FOR THE THIRD RESPONDENTS

Mr Skilton
Sladen Legal

COUNSEL FOR THE FOURTH RESPONDENTS:

No appearance

SOLICITOR FOR THE FOURTH RESPONDENTS

No appearance

Orders

Pursuant to section 106A of the Family Law Act 1975 an officer of this Court be appointed to execute the contract of sale dated 13 May 2020 with respect to the real property situated at and known as E Street, F Town, being the whole of the land more particularly described in the certificate of title volume …, folio …, which will be referred to as the E Street property, and, thereafter, execute any necessary documents to give effect to the sale, including the settlement of the sale, including any deed or instrument in the name of the husband, and to do all acts and things necessary to give validity to the operation of the transfer of land in relation to the E Street property pursuant to these orders.
Ms B Lyndall, forthwith:
(a)do all such acts and things, and sign all such documents as may be required to withdraw, at her expense,…

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.

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Details

Case: [2020] FamCA 481
Decision Date: 27 May 2020

CaseChat Overview and Summary

In the matter of *Lyndall & Lyndall*, McEvoy J of the Family Court of Australia considered an interim application concerning the sale of a property. The wife sought orders for the removal of a caveat lodged by the second respondent, Ms B Lyndall, over the property. The husband and Ms B Lyndall asserted that the wife lacked the legal right to sell the property and that Ms B Lyndall held a right to its ownership. This application followed interim orders made in 2018 that provided for the sale of the property, and the husband and Ms B Lyndall had been notified of the wife's application to remove the caveat for over seven months.

The primary legal issues before the court were whether the wife was entitled to seek orders facilitating the sale of the property, given the existing 2018 orders, and whether the second respondent had discharged the onus of demonstrating a serious question to be tried regarding her caveatable interest in the land, and that the balance of convenience favoured the retention of the caveat.

McEvoy J reasoned that in the absence of any appeal against the 2018 orders, the wife was within her rights to pursue orders that would enable the sale of the property. The court found that the second respondent had failed to meet the required threshold to establish a serious question to be tried, nor had she shown that it was fairly arguable she possessed a caveatable interest or that the balance of convenience supported maintaining the caveat. Consequently, the court ordered the removal of the caveat and directed that effect be given to the sale of the property.

The court made several orders, including appointing an officer of the Court to execute the contract of sale and any necessary documents to give effect to the sale of the E Street property. Ms B Lyndall was ordered to withdraw her caveat forthwith and was restrained from lodging any further caveats. In the event of her failure to withdraw the caveat, an officer of the Court was appointed to execute the necessary documents for its withdrawal. The husband, Ms B Lyndall, and their agents were restrained from attending within 250 metres of the property. The wife was authorised to deal with the selling agent and conveyancer, and the proceeds of the sale were to be applied in accordance with the 2018 orders and otherwise held on trust by the wife's solicitor. The wife's costs of the application were reserved, and the matter was listed for further interim hearing.

Orders

Orders of the court

Pursuant to section 106A of the Family Law Act 1975 an officer of this Court be appointed to execute the contract of sale dated 13 May 2020 with respect to the real property situated at and known as E Street, F Town, being the whole of the land more particularly described in the certificate of title volume …, folio …, which will be referred to as the E Street property, and, thereafter, execute any necessary documents to give effect to the sale, including the settlement of the sale, including any deed or instrument in the name of the husband, and to do all acts and things necessary to give validity to the operation of the transfer of land in relation to the E Street property pursuant to these orders.

Ms B Lyndall, forthwith:

(a) do all such acts and things, and sign all such documents as may be required to withdraw, at her expense, the caveat lodged by her on her behalf over the E Street property;

(b) that she be restrained by injunction from lodging any further caveat over the E Street property; and

(c) in the event that Ms B Lyndall or her lawful agent, including by way of any case guardian, fails to withdraw the caveat lodged over the E Street property pursuant to this order within seven days for any request for the same and, for the purposes of this order, written notification from the wife’s solicitor to the Court as to the receipt of the signed contract or otherwise shall be evidence as to the same, then an officer of this Court be appointed pursuant to section 106A of the Family Law Act to execute any deed, instrument or document in the name of Ms B Lyndall and to do all things necessary to give validity to a withdrawal of caveat in relation to caveat registration number …12P in relation to the E Street property.

That the husband, and Ms B Lyndall and any agent acting on either of their behalves be restrained by injunction for attending at or within 250 metres of the E Street property.

The wife be solely authorised pursuant to these orders to deal with the selling agent and/or any conveyancer with respect to the sale of the E Street property pursuant to the orders of 6 December 2018.

Upon the sale of the E Street property, pursuant to the orders of 6 December 2018 the sale proceeds be applied in accordance with paragraphs 2(a) to (c), inclusive, of the orders of 6 December 2018 and otherwise be held on trust for all parties to these proceedings by the wife’s solicitor.

The wife’s costs of and associated with this application be reserved.

The matter otherwise remain listed for further interim hearing on 20 July 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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