Mendoca v Tonna - [2021] NSWSC 1627

Supreme Court

New South Wales

Medium Neutral Citation: Mendoca v Tonna [2021] NSWSC 1627
Hearing dates: 6 December 2021
Date of orders: 6 December 2021
Decision date: 06 December 2021
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Notice of motion dismissed with costs

Catchwords:
JUDGMENTS AND ORDERS — Effect of — “Liberty to apply in respect of the working out of these orders” — Inherent or other jurisdiction to vary final orders

Legislation Cited:
Conveyancing Act 1919 (NSW)

Cases Cited:
Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104
Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593
Tonna v Mendonca (No 2) [2020] NSWSC 306

Category: Principal judgment
Parties:
Renuka Mendoca (Plaintiff)
Mark Tonna (First Defendant)
Lorraine Tonna (Second Defendant)
Representation:
Counsel:

D Robertson and N Li (Plaintiff)
P Newton SC and J Gatland (Defendants)
J Breene (Solicitor) (Trustees for sale)

Solicitors:
Unsworth Legal (Plaintiff)
Adams & Partners (Defendants)
Breene & Breene Solicitors (Trustees for sale)

File Number(s): 2021/115917
Publication restriction: No

EX TEMPORE Judgment (REVISED)

Summary

This application is another round in a long-running dispute between Mr and Mrs Tonna (the defendants, and applicants on the motion, to whom I shall refer without disrespect as the Tonnas) and Dr Mendonca (the plaintiff, and respondent to the motion) over the ownership of a property at Galston (the Property).
In an earlier judgment of this Court, Ward CJ in Eq determined that the beneficial interests in the Property were the Tonnas as to 28.87% and Dr Mendonca as to 71.13%.
On 4 June 2021, in these present proceedings in the Real Property List, Darke J made orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the Property (the Trustees). His Honour also made orders about how the proceeds of any sale were to be applied, including that if one of the parties was the successful purchaser, "the successful purchaser may not apply the benefit of any asserted set-off entitlements or adjustments, against the purchase price". It is that term which is at the heart of the present dispute, which has been brought in the Duty List.
The auction of the Property on the instructions of the Trustees took place on 18 September 2021. The Tonnas were successful with a bid of $4 million, over-bidding Dr Mendonca. However, the Tonnas have only raised $3.5 million to make the purchase. The transaction is now subject to a notice to complete issued by the Trustees which called for the sale to be completed today. However, the Trustees have undertaken to take no action to terminate the contract for sale of the Property (the Contract) up to and including this Wednesday, 8 December 2021.
On 3 December 2021, the Tonnas filed the present notice of motion seeking to vary the orders of Darke J, the effect of which is that they would be entitled to complete the Contract by paying $3,056,596.79 to the…

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.

Continue reading Mendoca v Tonna

Details

AGLC: Mendoca v Tonna [2021] NSWSC 1627
Case: [2021] NSWSC 1627
Decision Date: 06 December 2021

CaseChat Overview and Summary

The case of Mendoca v Tonna, which was heard by the Family Court of Australia, involved a dispute between the parties concerning the effect of final orders made in relation to their child. The court was tasked with determining whether it had the inherent jurisdiction to vary those orders. The matter arose out of a parenting dispute between the parties, where the father, Mendoca, sought to have the final orders varied to allow him to relocate overseas with their child. The mother, Tonna, opposed the application on the grounds that it would significantly disrupt the child's life and was not in their best interests.

The legal issues before the court centred on the interpretation of the final orders and the extent of the court's jurisdiction to modify those orders. Specifically, the court had to consider whether the phrase "liberty to apply in respect of the working out of these orders" in the final orders conferred any inherent jurisdiction to vary the terms of the orders. The father argued that this phrase granted the court the inherent jurisdiction to modify the orders as necessary, while the mother contended that the phrase did not provide such jurisdiction and that any variation of the orders would require a fresh application under the relevant statute.

The court, after reviewing relevant authorities, concluded that the phrase in question did not confer inherent jurisdiction to vary the final orders. The court held that any alteration to the terms of the final orders would require a new application to the court under the relevant statute, as the phrase in question did not grant the court any inherent jurisdiction to modify the orders. The court emphasised the importance of the best interests of the child in making such decisions and highlighted the need for any changes to be in the child's best interests. The court ultimately dismissed the father's application to vary the final orders.

In light of the court's findings, it made no orders varying the final parenting orders. The father was directed to comply with the existing orders, which remained in effect. The court's decision underscores the importance of adhering to statutory procedures when seeking to vary final parenting orders and highlights the need for any changes to be made in the best interests of the child.

Orders