Marr and Rather and Anor

[2016] FamCA 119

FAMILY COURT OF AUSTRALIA

MARR & RATHER AND ANOR [2016] FamCA 119

FAMILY LAW – Review of Registrar’s decision. Costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Marr

1^st RESPONDENT: Mr Rather

2^nd RESPONDENT: Ms Jantos

FILE NUMBER: SYC 4231 of 2015

DATE DELIVERED: 29 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 29 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Watts McCray

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

COUNSEL FOR THE RESPONDENT: Mr Campton, SC

SOLICITOR FOR THE RESPONDENT: Caldwell Martin Cox

Orders

1. The Application in a Case filed 21 September 2015 for review of a Registrar’s decision be dismissed.

2. The 2^nd respondent pay the applicant’s costs of the application on a party/party basis as agreed or assessed.

3. The enforcement of order 2 be stayed until after the proceedings have been resolved on a final basis including any costs applications that may flow from the finalisation of the proceedings

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marr & Rather and Anor 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 SYDNEY

FILE NUMBER: SYC 4231  of 2015

Ms Marr

Applicant

And

Mr Rather

1^st Respondent

And

Ms Jantos

2^nd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this case, the 2^nd respondent claims that the applicant de facto wife has not particularised nor provided proper points of claim in relation to her assertion that the 2^nd respondent holds certain real estate and shares in trust for the 1^st respondent.

2. On 21 September 2015 the 2^nd respondent filed an Application in a Case to review a decision of Registrar McNamara that was made 14 September 2015. The Registrar declined to make orders sought in a document she marked as Exhibit 1, which is attached to the Application in a Case and marked “A”.

3. The matter proceeded before me as a hearing de novo. In the application, which the Registrar refused, the 2^nd respondent seeks a stay of proceedings until the de facto wife in the proceedings provides material identified in paragraph 3 of the request for particulars and points of claim dated 31 August 2015. That document is the last page of the affidavit of the 2^nd respondent filed 21 September 2015. The application refused by the Registrar also sought that if the material identified in the request was not provided within 28 days, there be a self-executing order that the relief sought against the 2^nd respondent be struck out for want of prosecution and the 2^nd respondent be removed as a party to the proceedings.

4. The final orders which the applicant seeks against the 2^nd respondent are set out in the de facto wife’s Amended Initiating Application filed 4 November 2015. That application seeks:

   4.1.A declaration that the 2^nd respondent holds her interest in the property at B Street, Suburb C on trust for the 1^st respondent;

   4.2.A declaration that the 2^nd respondent holds her interest in the share she holds in Rather Jantos Pty Limited on trust for the 1^st respondent.

5. There is no issue that the de facto wife relies upon accrued jurisdiction to seek those orders.

6. The wife provided a points of claim document to the 2^nd respondent and that points of claim document was attached to an affidavit that the de facto wife sworn on 10 September 2015. That points of claim document at [15] asserts that the 2^nd respondent holds the interest in the Suburb C property and her shareholding in the company on constructive trust for the 1^st respondent but as the discussions in these proceedings before me today makes clear, there is an alternative basis apart, from a constructive trust, upon which the applicant seeks to rely and that is an actual trust arising from the fact that the applicant asserts that the 1^st and 2^nd respondents had agreed on an informal alteration of their property upon the breakdown of their relationship. That agreement is referred to in a letter written by the 1^st respondent’s lawyers to the 1^st respondent on 24 January 2011 (page 39 of the applicant’s affidavit of 17 June 2015). The proposed property division between the 1^st and 2^nd respondent is set out as annexure to that letter. It is the applicant’s case the 1^st and 2^nd respondents entered into that agreement and that part of the agreement, foreshadowed in that letter, has been implemented but two things (at least) have not happened. The first is the actual transfer of the legal title of the B Street, Suburb C property from the 2^nd respondent to the 1^st respondent. The second is the transfer by the 2^nd respondent to the 1^st respondent of the shares the 2^nd respondent holds in Rather Jantos Pty Ltd.

7. A fair reading of the documents would indicate that the applicant has put the 2^nd respondent in the position of knowing the basis upon which the applicant seeks the orders that she does against the 2^nd respondent.

8. Accordingly I dismiss the application for review.

9. Counsel for the applicant sought an order for costs of the application for review on the basis that any enforcement of any cost order would not happen until after the proceedings are finalised. Senior counsel for the 2^nd respondent did not wish to be heard on the application. Given that the application for review has been wholly unsuccessful I will make an order that the 2^nd respondent pay the applicant’s costs to be agreed or assessed. I shall stay enforcement of that order until after the proceedings have been resolved on a final basis including any costs applications that may flow from those the finalisation of proceedings.

I certify that the preceding nine (9) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 29 February 2016.

Associate: 

Date:  1.3.2016