Morse & Duarte (No 3) - [2023] FedCFamC1F 35

Federal Circuit and Family Court of Australia
(DIVISION 1)
Morse & Duarte (No 3) [2023] FedCFamC1F 35

File number(s): SYC737 of 2014

Judgment of: HARPER J

Date of judgment: 31 January 2023

Catchwords: FAMILY LAW – PROPERTY – Interim – Where wife purchased a property following her separation from the husband (“the Suburb C property”) – Where wife and second respondent are registered on the title of the Suburb C property as tenants in common – Second respondent made no contribution to the purchase price of the Suburb C property – Funds for purchase of the Suburb C property originated from sale proceeds of the former matrimonial home and the sale of shares held in the wife’s name – Husband and wife seek a declaration that second respondent holds no beneficial interest in the property – Declaration that second respondent holds no beneficial interest in the Suburb C property – Second respondent ordered to transfer his right, title and interest in Suburb C property to wife – Second respondent removed as party to the proceedings – Husband and wife referred to conciliation conference.

Cases cited: Duarte & Morse (2019) FLC 93-902; [2019] FamCAFC 93

Division: Division 1 First Instance

Number of paragraphs: 14

Date of hearing: 31 January 2023

Place: Sydney

Counsel for the Applicant: Mr Alexander

Solicitor for the Applicant: Lander & Rogers

First Respondent: Litigant in person

Second Respondent: No appearance
ORDERS

SYC737 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MORSE

Applicant

AND:
MS DUARTE

First Respondent

MR TOLMAN

Second Respondent

order made by:

HARPER J

DATE OF ORDER:

31 January 2023

THE COURT NOTES THAT:
A.There was no appearance by the Second Respondent when the matter was called at 10.10 am on 31 January 2023.

THE COURT ORDERS THAT:
1.Order 1 made on 30 September 2022 be varied to read:
There be determined separately and before any other issues the question of the beneficial ownership of the Second Respondent’s interest in the land contained in the Real Property Act 1900 (NSW) Folio Identified … situated and known as B Street, Suburb C (‘Suburb C property’).

THE COURT DECLARES THAT:
2.The Second Respondent, Mr Tolman, has no beneficial interest in the Suburb C property.

THE COURT FURTHER ORDERS THAT:
3.As between the Applicant and First Respondent and without prejudice to their respective rights at trial and without any admissions as between them, within 7 days of the making of this order, the Second Respondent do all acts and things and sign all documents necessary to transfer his right, title and interest in the Suburb C property to the First Respondent.
4.Upon the transfer contemplated by Order 3, the Second Respondent be removed as a party to the proceedings.
5.In the event any party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders a Registrar of the Court shall be appointed pursuant to s 106A of the Family Law Act 1975

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 Morse & Duarte (No 3)

Details

AGLC: Morse & Duarte (No 3) [2023] FedCFamC1F 35
Case: [2023] FedCFamC1F 35
Decision Date

CaseChat Overview and Summary

The matter of Morse & Duarte (No 3) came before the Federal Circuit and Family Court of Australia, Division 1, presided over by Harper J. The case revolves around the property dispute concerning the beneficial ownership of a property located at B Street, Suburb C, following the separation of the husband and wife. The second respondent, Mr Tolman, who is registered on the title of the property as a tenant in common, did not appear in court. The central legal issues involved determining whether Mr Tolman had any beneficial interest in the property, given that he made no contribution to its purchase price.

The court reviewed the evidence presented by the husband and wife, who indicated that the funds for purchasing the property came from the sale proceeds of their former matrimonial home and the sale of shares held in the wife's name. The court concluded that Mr Tolman had no beneficial interest in the property since he did not contribute to its purchase. This conclusion aligns with the findings in the earlier case of Duarte & Morse (2019). The court thus ordered that Mr Tolman be removed as a party to the proceedings and that he transfer his interest in the property to the wife within seven days. Furthermore, the court referred the husband and wife to a conciliation conference and mandated the preparation of a joint balance sheet detailing their assets, liabilities, superannuation, and other financial resources relevant to the proceedings.

Harper J's reasoning was grounded in the lack of participation by Mr Tolman and the clear evidence that he made no contribution to the property's purchase. The court deemed it appropriate to remove him from the proceedings and to declare that he holds no beneficial interest in the Suburb C property. The orders made by the court aim to facilitate the resolution of the remaining issues between the husband and wife, hopefully through negotiation or a conciliation conference.

Orders