Mitty and Mitty and Ors - [2008] FamCA 972

FAMILY COURT OF AUSTRALIA

MITTY & MITTY & ORS

[2008] FamCA 972

FAMILY LAW – PROPERTY – CAVEATS – application for injunction restraining the lodging or maintaining of caveats against a property – sale to proceed to completion

Family Law Act 1975 (Cth)

APPLICANT:

Ms Mitty

1^st RESPONDENT:

Mr Mitty

3^rd RESPONDENT:

Mitty Pty Ltd

4^th RESPONDENT:

Ms N

5^thRESPONDENT:

Ms S

6^th RESPONDENT:

Mr M

FILE NUMBER:

SYC

8326

2007

DATE DELIVERED:

6 November 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

ORDERS MADE:

Newcastle

JUDGMENT OF:

Justice Fowler

HEARING DATE:

24 October 2008

ORDERS MADE:

27 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

1^ST RESPONDENT:

In person

COUNSEL FOR THE 3^RD, 4^TH AND 5^TH RESPONDENTS:

Mr Brzostowski SC

6^TH RESPONDENT:

Excused from attendance

Orders

THE COURT NOTES that in these Orders:

A. “Husband” means Mr Mitty born … July 1967.

B.“T Property” means the property situated at … Road, T and being the property described in Title Reference …/… and in respect of which R Pty Limited is the registered proprietor.
C.“H Capital” means H Capital Pty Limited, ABN …, being a company registered in the State of New South Wales and having its registered office at …, NSW and in respect of which the husband is the Director, Secretary and Shareholder.

AND THE COURT NOTES that this matter having been heard on Friday,
24 October 2008 and the making of these Orders being a matter of urgency the Court makes the Orders on the basis that it will in due course publish its Reasons therefore.

AND IT IS ORDERED THAT:

The husband in his own capacity and as sole director and shareholder of H Capital do all acts and things and sign all documents necessary to withdraw the caveats lodged on the T property by the husband and by H Capital.
The husband thereafter in his own capacity and as director and shareholder of H Capital be restrained by injunction from doing any act or thing to cause a caveat or other encumbrance to be registered on the T property and from doing any act or thing to interfere with the sale of the property.

IT IS NOTED that publication of this judgment under the pseudonym Mitty & Mitty and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8326 of 2007

MS MITTY

Applicant

And

MR MITTY

1^stRespondent

And

MITTY PTY LTD

3^rd Respondent

And

MS N

4^th Respondent

And

MS S

5^th Respondent

And

MR M

6^th Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court are interim applications. The wife seeks orders by way of injunction restraining the husband and a company, of which he is the sole shareholder and director (H Capital Pty Limited (“H Capital”)), from lodging or maintaining caveats against a property. The wife’s father, Mr W,…

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 Mitty and Mitty and Ors

Details

AGLC: Mitty and Mitty and Ors [2008] FamCA 972
Case: [2008] FamCA 972
Decision Date: 6 November 2008

CaseChat Overview and Summary

In the matter of *Mitty and Mitty and Ors*, Justice Fowler of the Court was required to determine urgent interlocutory orders concerning the T property. The dispute involved Mr Mitty, referred to as the "Husband," and H Capital Pty Limited, a company in which the Husband is the sole director and shareholder. The core of the disagreement related to caveats lodged on the T property, which was registered to R Pty Limited.

The legal issues before the Court were whether the Husband, both in his personal capacity and as the directing mind of H Capital, should be compelled to withdraw existing caveats lodged against the T property. Furthermore, the Court needed to consider whether an injunction should be granted to restrain the Husband and H Capital from lodging any further caveats or encumbrances on the T property and from interfering with its sale.

Justice Fowler ordered that the Husband, in his personal capacity and as the sole director and shareholder of H Capital, must take all necessary steps to withdraw the caveats lodged on the T property by himself and by H Capital. Additionally, the Husband, in both capacities, was restrained by injunction from taking any action that would result in the registration of a caveat or other encumbrance on the T property, or that would interfere with the sale of the property.

Orders

Orders of the court

THE COURT NOTES that in these Orders:

A. “Husband” means Mr Mitty born … July 1967.

B. “T Property” means the property situated at … Road, T and being the property described in Title Reference …/… and in respect of which R Pty Limited is the registered proprietor.

C. “H Capital” means H Capital Pty Limited, ABN …, being a company registered in the State of New South Wales and having its registered office at …, NSW and in respect of which the husband is the Director, Secretary and Shareholder.

AND THE COURT NOTES that this matter having been heard on Friday,

24 October 2008 and the making of these Orders being a matter of urgency the Court makes the Orders on the basis that it will in due course publish its Reasons therefore.

AND IT IS ORDERED THAT:

The husband in his own capacity and as sole director and shareholder of H Capital do all acts and things and sign all documents necessary to withdraw the caveats lodged on the T property by the husband and by H Capital.

The husband thereafter in his own capacity and as director and shareholder of H Capital be restrained by injunction from doing any act or thing to cause a caveat or other encumbrance to be registered on the T property and from doing any act or thing to interfere with the sale of the property.

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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