PENCIOUS & SEARLE

In the Family Court of Australia, Johns J heard an application by the wife against the husband concerning the former matrimonial home. The dispute arose after final property orders were made, which stipulated that the wife would retain the former matrimonial home. Subsequently, the husband lodged a caveat against the title of this property. The wife sought orders for the husband to remove the caveat and to be restrained from lodging further caveats, as she contended there was no basis for his claimed interest in the property. The husband did not appear at the hearing.

The court was required to determine whether to grant the wife's application for injunctive relief to remove the caveat and prevent future lodgements. Additionally, the court considered the wife's application for costs associated with the hearing.

Johns J reasoned that the husband's caveat was lodged without any apparent legal basis, particularly in light of the final property orders that had already determined the parties' interests in the former matrimonial home. Applying principles of family law concerning property division and the proper use of caveats, the court found that the husband's actions were vexatious and without merit. Consequently, the court ordered the husband to forthwith withdraw the caveat and authorised the Registrar to execute the withdrawal if the husband failed to comply within seven days. The court also restrained the husband from lodging any further caveats on the property's title until further order.

The court further ordered that the husband pay the wife's costs of the hearing, fixing the sum at $3,500. This decision took into account the wife's complete success in her application and the husband's failure to appear and the lack of merit in his actions. The court also directed the application of certain monies held in trust to satisfy previously ordered costs against the husband.