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, 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lyndall & Lyndall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5609 of 2018

MS LYNDALL

Applicant

and

MR LYNDALL AND ORS

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ms Lyndall, who shall be referred to as the wife, seeks urgent interim relief from the Court in the relation to sale of the former matrimonial home at E Street, F Town in the State of Victoria. The wife has provided to the Court and to all parties a proposed minute setting out the interim orders sought. The wife relies upon her Further Amended Initiating Application filed on 29 April 2020 and her affidavits filed on 21 October 2019, 29 April 2020 and 26 May 2020. She further relies upon the affidavit of her solicitor, Ms Melanie Davison, filed on 8 November 2018 and the affidavit of Mr G, a property valuer, filed on 26 May 2020.
The following background matters should be stated. The wife and Mr Lyndall, who shall be referred to as the husband, were married for nearly 52 years. They separated in October 2017. The wife is nearly 77 years of age, and the husband is now 80 years of age. The parties, together, have three adult children who, for differing reasons, are also now all parties to this litigation. The matters before the Court on this urgent application, however, do not materially concern the third and the fourth respondents.
The wife filed an Initiating Application seeking both interim and final property orders in the Federal Circuit Court of Australia on 22 May 2018. The husband filed his Response and supporting material on 28 June 2018.
The matter first came before her Honour Judge Harland in the Circuit Court on 3 July 2018. On that occasion, the wife sought to prosecute her interim application for a sale of the F Town property. The husband, through his counsel at the time, objected to that interim application being heard on that date, and asserted that the now second respondent, Ms B Lyndall, had an interest in the F Town property and ought to be heard on the question of the sale.
Her Honour indicated to the parties that she would give Ms B Lyndall an opportunity to be heard on the question of the sale. Her Honour made orders, inter alia, adjourning the matter for an interim defended hearing on 21 September 2018. Her Honour made further orders by consent that, amongst other matters, the wife was to serve a copy of all court documents filed and orders made in the proceeding to date upon Ms B Lyndall, and that Ms B Lyndall was thereafter to have liberty to intervene in the proceeding.
Her Honour made two notations to the orders of 3 July 2018. First, it was noted that the “wife will seek to agitate an interim sale of the F Town property on the next occasion”. Secondly, a notation in the following terms:
The husband asserts that by virtue of the succession plan for the Lyndall Family Document (which was annexed to the husband’s affidavit filed on 28 June 2018) Ms B Lyndall may be a person affected by the making of orders, pursuant to section 79 of the Family Law Act 1975, between the husband and the wife. Ms B Lyndall is to be put on notice of these proceedings pursuant to order 1 herein so that she may intervene, if she wishes, to protect or prosecute any claim in relation to the parties’ property interests.
In the affidavit of Ms Davison, the wife’s solicitor, filed on 8 November 2018, Ms Davison deposes to efforts made to serve Ms B Lyndall with a copy of the relevant court documents. Annexed to that affidavit are several emails from Ms B Lyndall to Ms Davison which indicate, quite emphatically, that Ms B Lyndall did not intend to participate in the proceeding.
The interim defended hearing before her Honour Judge Harland did not occur until 6 December 2018. The wife maintains that Ms B Lyndall was first put on notice of the proceeding on or around 31 July 2018. In this respect see paragraphs 5 to 6 and Annexures A and B of the affidavit of Ms Davison filed 8 November 2018. It is to be noted, therefore, that Ms B Lyndall had in excess of four months to bring any application before the Court concerning the proposed interim sale of the F Town property.
When the matter returned before her Honour Judge Harland on 6 December 2018, she was satisfied that Ms B Lyndall was on notice of the proceeding and had had a sufficient opportunity to participate if she wished to do so. The wife then proceeded to agitate her interim sale application, and the husband resisted those orders being made. Following submissions, her Honour made an order that the F Town property was to be listed for sale within the next seven days. Her Honour, thereafter, made further interim orders which were by consent concerning the process and mechanics of the sale.
At no stage was any appeal against her Honour’s orders brought by or on behalf of either the husband or Ms B Lyndall. Accordingly, it is submitted by the wife that her Honour’s orders of 6 December 2018 remain in full force and effect, and that having been successful on that interim application, she is entitled to have those orders complied with.
The matter was initially listed for a final hearing before her Honour Judge Harland on 30 October 2019. However, on 14 October 2019 Ms B Lyndall lodged a caveat over the F Town property. In this respect see paragraph 5 and Annexure A of the affidavit of Ms Lyndall filed on 21 October 2019. It is to be noted that, notwithstanding the lodgement of her caveat and her having first been placed on notice of the proceeding more than 14 months earlier, Ms Lyndall did not at any stage seek to intervene in this proceeding to prosecute any relief on her own behalf. Instead it fell to the wife to incur the further costs of applying to join Ms B Lyndall to the proceeding in order to have the caveat removed.
The wife first sought the removal of the caveat by way of an Amended Initiating Application filed on 21 October 2019. Ms B Lyndall was served with a copy of that Amended Initiating Application and the wife’s further supporting affidavit material on or around 22 October 2019. In this respect see paragraphs 4 to 8 and Annexures A to C of the affidavit of Ms Davison filed on 29 October 2019. The husband’s then solicitors were also served with a copy of these documents, and, accordingly, both the husband and Ms B Lyndall have been on notice of the wife’s application to remove the caveat for in excess of seven months.
Turning now to the sale of the F Town property, the property has been on the market for sale for nearly 18 months. Two previous purchase offers have been made – first at $610,000 in March 2019, and then again at $590,000 in May 2019. The wife contends that the husband rejected and frustrated both of those offers, such that they did not proceed. I see, in this respect, the affidavit of Ms Davison filed on 10 May 2019.
The current offer to purchase the property is $525,000, and it remains open for acceptance until today, 27 May 2020. Pursuant to paragraph 1(d)(ii) of the orders made by her Honour Judge Harland on 6 December 2018, the wife has obtained further valuation evidence from the agreed valuer, Mr G. He deposes to the F Town property now having a current market value of $525,000, and this is to be seen at page 10 of the sworn valuation marked as Annexure A to the affidavit of Mr G filed on 26 May 2020.
The wife submits that, pursuant to paragraphs 1(d)(iii) and 1(d)(iv) of the orders made on 6 December 2018, the sum of $525,000 is now the minimum contract sale price and that the offer is to be accepted in the absence of any other agreement between the parties.
Turning to Ms Lyndall’s caveat on the title to the property, the property is registered in the names of the matrimonial parties. It is the subject property of this proceeding, and the question of beneficial title in that property arises out of a common substratum of facts and forms part of a single justiciable controversy. I refer, in this regard, to the decision of Forrest J in Auricchio & Auricchio & Ors (No. 2) [2014] FamCA 240 at paragraphs [29] to [31], and to my own decision essaying the relevant principles in Tailor & Tailor [2019] FamCA 383 at paragraph [65].
In Auricchio, Forrest J noted at [32]:
… in an application to remove a caveat … the onus is on the caveator to satisfy the Court that:
(i)there is a serious question to be tried which involves showing “a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo”; and
(ii)it is fairly arguable that the caveator has a caveatable interest in the land, and if so;
(iii)the balance of convenience favours the retention of the caveat on the title.
In Piroshenko & Grojsman & Ors [2010] VSC 240, Warren CJ commented at [23] that:
…it should be noted that the onus which the caveator must discharge is an onus with respect to an interest of rights in land. A caveat is not a ‘bargaining chip’. It is not sufficient for the caveator to establish a prima facie case that they have contractual, equitable or statutory rights against the caveatee; their interest or rights must attach to the property with respect to which the caveat has been lodged.
The wife submits that Ms B Lyndall does not have any form of caveatable interest in the F Town property, whether arising under the succession plan or otherwise. She says that the succession plan makes no express reference at all to the F Town property (which she says the parties did not own at the date of the plan), nor, she says, does it impose any constraint on the wife and the husband in dealing with that property.
The wife further maintains that Ms B Lyndall does not have any interest in the sale proceeds of the F Town property, equitable or otherwise, capable of being recognised by this Court. Nonetheless, the wife concedes that the ultimate question of the beneficial ownership of those sale proceeds is a matter that can be dealt with at a later stage.
The wife submits that even if the Court takes the view that Ms B Lyndall may have some form of interest in the F Town property or, indeed, takes the view that the issue cannot be ascertained at an interim stage, the balance of convenience clearly favours the removal of the caveat.
The wife refers in this respect, to Bradto Pty Ltd & State of Victoria, Tymbook Pty Ltd & State of Victoria [2006] VSCA 89, where the Victorian Court of Appeal held at [35] that with respect to the balance of convenience question:
… the court should take whichever course appears to carry the lower risk of injustice if it should out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.
The wife says that there would be a lower risk of injustice were orders to be made for the removal of the caveat in circumstances where:
a)There are existing court orders in place for the sale of the F Town property. Both the husband and Ms B Lyndall were on notice of the original interim application for sale. Ms B Lyndall elected not to be heard on the matter and the husband unsuccessfully opposed the interim sale. Those orders have not at any stage been appealed and the wife is entitled to the benefit of those interim orders.
b)It is openly conceded, and indeed required under the orders made on 6 December 2018, that the net sale proceeds of the F Town property will be held in trust pending either agreement or the Court’s determination of the beneficial ownership of those funds. Ms B Lyndall therefore suffers no material prejudice by the completion of the sale.
c)To the extent that Ms B Lyndall argues that she would be prejudiced by the loss of sale, costs, and commissions – taking that argument at its highest, that degree of loss is confined, and could be the subject of apportionment at trial if the Court ultimately found that Ms B Lyndall was in fact the beneficial owner of those sale proceeds. Further, it is submitted by the wife that the Court can take note of the fact that the value of the F Town property has reduced to date, simply in terms of purchase offers made, by $85,000. In those circumstances, the wife contends that the greater the risk, over and above any issue of sale costs, is that the property will continue to decrease in value.
d)The wife has continued to meet her share of the rates payment and all insurance payments for the F Town property. She has paid cleaning and gardening costs. She has also now paid for two sworn valuation reports. The husband has not contributed to any of these expenses, and she says he continues to refuse to do so. She refers, in this regard, to paragraph 17 and 23 of her affidavit filed on 29 April 2020, and also paragraph 9 of her affidavit filed on 26 May 2020. She says that it would impose a manifest injustice upon her to require her to continue to have to meet those expenses, out of her own limited resources, pending this matter proceeding to final hearing.
e)The wife maintains that the husband’s conduct, in refusing to facilitate the acceptance of two earlier offers at a substantially higher price than the current offer, has resulted in a diminishing of the available matrimonial asset pool and that such conduct ought not be further rewarded by yet another thwarted opportunity to sell.
f)Aside from lodging her caveat, Ms B Lyndall has not taken any proactive steps to bring her claims before the Court. It is the wife who has had to initiate her joinder. Again, Ms B Lyndall’s dilatory conduct in the circumstances speaks against the caveat being maintained.
The wife submits that in circumstances where Ms Lyndall cannot point to how she is materially prejudiced by the removal of the caveat and the completion of the sale, the relief she seeks ought be granted.
This matter was mentioned before the Court yesterday, 26 May 2020. The wife was represented by Mr Carne of counsel, the husband himself appeared, and on a provisional basis, the Court agreed to hear from Mr H who asserted that he held an enduring power of attorney on behalf of Ms B Lyndall.
Both Mr Lyndall and Mr H submitted, in essence, that the orders made by her Honour Judge Harland for the sale of the property should be set aside. They do not offer any substantive reason why her Honour’s orders were not appealed. Insofar as it is said by the wife that Ms B Lyndall was given an opportunity to be heard in the proceeding but did not, Mr H says that this is because she suffers from some form of post-traumatic stress disorder.
The Court indicated to Mr Lyndall and Mr H yesterday that having regard to the firm possibility of the sale of the F Town property which would need to be completed today, the matter would be listed for interim hearing today, 27 May 2020, at 1.00 pm. They were given until this morning to file any material in opposition to the orders sought by the wife. Mr Lyndall has filed a Response to the wife’s Application in a Case and an affidavit.

In essence, Mr Lyndall opposes the sale of the property on the basis that the legal right he and the wife have to sell the property is a matter of dispute. He seeks the setting aside of Judge Harland’s orders of 6 December 2018. His affidavit material ventilates arguments as to Ms B Lyndall’s rights under the Lyndall Family Succession Plan, and other matters of limited or no relevance on the wife’s application. Mr Lyndall has again taken the opportunity this morning to address the Court in relation to these matters, particularly the Lyndall family succession plan.
Mr H, on behalf of Ms B Lyndall, relies on a Response to an Application in a Case filed 26 May 2020 and a two-paragraph affidavit of Ms B Lyndall also filed 26 May 2020. The essence of both these documents is to assert that the wife does not have a legal right to sell the F Town property and that Ms B Lyndall has a right under the family succession plan to ownership of the property. Mr H also relies on emails to the Court this morning, 27 May 2020, the substance of which is that there are reasons why Ms B Lyndall was not able to participate in the proceeding prior to Judge Harland making the 6 December 2018 orders.
It is apparent that, for whatever reason, the orders of her Honour Judge Harland on 6 December 2018 providing for the sale of the F Town property have been stymied. Mr Lyndall has not sought to appeal the orders, and the wife is within her rights to seek orders which would have the effect of facilitating the sale of the F Town property, for which the orders provide. In this respect, the submissions made by the wife in her outline of submissions filed at 9.00 am this morning are to be accepted.
In all the circumstances Ms B Lyndall has not discharged the onus on her to satisfy the Court today that there is a serious question to be tried which involves showing a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo, and that it is fairly arguable that she has a caveatable interest in the land, and if so – that the balance of convenience favours the retention of the caveat on the title.
Indeed, as the wife has submitted, in all the circumstances, the balance of convenience favours the sale of the property consistently with the orders sought. The evidence that the value of the F Town property is continuing to fall suggests that none of the parties will be prejudiced by sale of the property.
Insofar as Ms B Lyndall claims that she was not able to participate in the hearings before her Honour Judge Harland in 2018, I do not consider that this claim is consistent with the evidence of Ms B Lyndall’s written communications to the wife’s solicitor declining to become involved in the proceedings and requesting not to be contacted in relation to them.
In any event, if Ms B Lyndall is ultimately successful in showing that she has an equitable interest in the F Town property, her rights in this respect will be able to be vindicated by recourse to the balance of the sale proceeds which will be held in trust pending the resolution of Ms B Lyndall’s claim.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 27 May 2020.

Associate:

Date: 8 July 2020