Pretswell (deceased) and Pretswell

Case [2019] FamCA 395


FAMILY COURT OF AUSTRALIA

PRETSWELL (DECEASED) & PRETSWELL [2019] FamCA 395
FAMILY LAW – PROPERTY – Interim orders – where the respondent husband died intestate following the commencement of proceedings in the Federal Magistrates Court of Australia (as it was then known) – where Letters of Administration granted and Administrator of the husband’s estate appointed – where husband held real property in his sole name at time of death – where the Administrator makes an interim application seeking orders for sale of real property previously held by husband, for litigation funding purposes – where the Administrator seeks orders for payment pursuant to ss 79 & 80(1)(h) or alternatively s 117 of the Family Law Act 1975 (Cth) – where the wife contends husband held real property on trust for the parties as joint tenants – where the wife contends the real property passed wholly to her on the husband’s death as the surviving owner – where the real property is presently under the control of the Administrator – where the wife seeks the real property be transferred to her – where concurrent proceedings before the Supreme Court of New South Wales – where impact of s 79(8) of the Family Law Act 1975 (Cth) considered – where Court finds no basis for partial property settlement pursuant to ss 79 & 80(1)(h) – where no order made by Court in favour of estate pursuant to s 117.

Family Law Act 1975 (Cth), ss. 4, 75, 79, 80, 117
Succession Act 2006 (NSW), ss. 106, 113

Family Law Rules 2004 (Cth), r. 1.04

Anderson v McPherson [No.2] [2012] WASC 19
Bevan & Bevan [2013] FamCAFC 116
Black Uhlans Inc v New South Wales Crime Commission & Ors [2002] NSWSC 1060
Bourke & Bourke [1998] FamCA 69
Bryson v Bryant (1992) 29 NSWLR 188
Calverley v Green (1984) 155 CLR 242
Capelinski & Patton [2010] FamCA 1243
Cornell & Stokes [2008] FMCAfam 774
Currie v Hamilton (1984) 1 NSWLR 687
Doyle and Doyle (deceased) (1989) FLC 92-027
Eves v Eves [1975] EWCA Civ 3; [1975] 1 WLR 1338
Fielding and Nichol [2014] FCWA 77
Fisher v Fisher (1986) 161 CLR 438; [1986] HCA 61
Flanagan & Sobek (Deceased) [2014] FamCA 696
Grace v Grace [2012] NSWSC 976
Green v Green (1989) 17 NSWLR 343
In the Marriage of Mason (1993) 17 Fam LR 269
Marriage of Love (1993) 17 Fam LR 263
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Neilson v Letch (No.2) [2006] NSWCA 254
Neubert (deceased) & Neubert and Anor (No. 2) [2017] FamCA 829
North v North; Public Trustee of NSW (Intervener) (1987) FLC 91-831
Osferatu & Osferatu [2012] FamCA 408
Parianos v Melluish (Trustee) [2003] FCA 190
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Parrott v Public Trustee of NSW (1993) 17 Fam LR 785
Ryan v Ryan [2012] NSWSC 636
Silvia (Trustee) v Williams [2018] FCAFC 194
Sirola & Sirola and Ors [2018] FamCA 1011
Stanford & Stanford [2012]…

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Pretswell (deceased) and Pretswell [2019] FamCA 395
Case
[2019] FamCA 395
Decision Date

CaseChat Overview and Summary

In the matter of *Pretswell (deceased) and Pretswell*, Harper J of the Supreme Court of New South Wales considered an application by an Administrator. The dispute concerned the property located at F Street, Suburb D, New South Wales, and the Administrator's proposed actions regarding this asset.

The primary legal issue before the Court was whether the Administrator should be permitted to dispose of, encumber, or otherwise deal with the property at F Street, Suburb D. The Court was also required to determine the appropriate orders to be made concerning the Administrator's application and the costs associated with it.

Harper J dismissed the Administrator's application, thereby restraining the Administrator from dealing with the property pending further order or final determination of the proceedings. The Court reserved the question of the wife's costs in relation to the Administrator's application.

Orders

Orders of the court

1.

The Administrator’s Application in a Case filed 11 April 2019 be dismissed.

2.

Pending further order or final determination of these proceedings, the Administrator be restrained from disposing of, encumbering or otherwise dealing with the property known as and situate at F Street, Suburb D in the state of New South Wales being the whole of the land contained in folio identifier … .

3.

The question of the wife’s costs of the Application in a Case filed 11 April 2019 by the Administrator be reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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