Prosser and Prosser and Anor - [2018] FamCA 1077

FAMILY COURT OF AUSTRALIA

PROSSER & PROSSER AND ANOR

[2018] FamCA 1077

FAMILY LAW – PROPERTY – Declaration of rights – Constructive trust alleged – Application summarily dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Civil Procedure Act 2010 (Vic)
Federal Circuit Court Act 1999 (Cth)

Ebner & Pappas (2014) FLC 93-619
Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158
Eames & Eames [2018] FamCAFC 204
Lindon v The Commonwealth (No 2) (1996) 136 ALR 251
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 25
Custodio & Pinto [2006] FamCA 941

APPLICANT:

Ms Prosser

1st RESPONDENT:

Mr A Prosser

2nd RESPONDENT:

Mr B Prosser

FILE NUMBER:

BRC

1320

2015

DATE DELIVERED:

9 November 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

20 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Chekirova

SOLICITOR FOR THE APPLICANT:

Aylward Game Solicitors

COUNSEL FOR THE RESPONDENTS:

Mr Priestley

SOLICITOR FOR THE RESPONDENTS:

Parker & Kissane

Orders

The Wife’s Application filed 8 August 2016 against the Second Respondent Mr B Prosser seeking declarations, is summarily dismissed.

On an interim basis pending further order that:

The Second Respondent will not deal with his interest in the property at F Street, E Town including selling, further encumbering or otherwise dealing with interest, pending further order of the Court.
The substantive proceedings be listed for Case Management Hearing at 9.30am on 27 November 2018 before Justice Baumann.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prosser & Prosser and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1320 of 2015

Ms Prosser

Applicant

And

Mr A Prosser
First Respondent

Mr B Prosser
Second Respondent

REASONS FOR JUDGMENT

In the midst of substantive property alteration proceedings between Ms Prosser (the “wife”) and Mr A Prosser (the “husband”), the wife caused Mr B Prosser (in these proceedings called “Mr B”) to be joined as a party by order of Judge Turner made 15 April 2015. Although not relevant to the current proceedings being determined, the son of the wife, Mr J, has also been joined as a party in the substantive proceedings.
Arising from an Application in a Case filed 12 February 2018 seeking orders that Mr B be restrained from “selling, encumbering or disposing of his interest” in the property situated at F Street, E Town, the solicitor advocate for Mr B raised whether the application…

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.

Keep reading for free

Create a free CaseChat account to read Prosser and Prosser and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FamCA 1077
Decision Date: 9 November 2018

CaseChat Overview and Summary

In the matter of *Prosser and Prosser and Anor*, Justice Baumann of the Family Court of Australia considered an application by the Wife against the Second Respondent, Mr B Prosser. The Wife sought declarations concerning Mr Prosser's interest in a property located at F Street, E Town.

The primary legal issue before the Court was whether the Wife's application for declarations against the Second Respondent should be summarily dismissed. The Court also considered interim orders to preserve the Second Respondent's interest in the specified property.

Justice Baumann ordered that the Wife's application for declarations against the Second Respondent be summarily dismissed. However, the Court also made interim orders, pending further order, restraining the Second Respondent from dealing with his interest in the property at F Street, E Town, including selling or further encumbering it. The substantive proceedings were adjourned for a Case Management Hearing.

Orders

Orders of the court

The Wife’s Application filed 8 August 2016 against the Second Respondent Mr B Prosser seeking declarations, is summarily dismissed.

On an interim basis pending further order that:

The Second Respondent will not deal with his interest in the property at F Street, E Town including selling, further encumbering or otherwise dealing with interest, pending further order of the Court.

The substantive proceedings be listed for Case Management Hearing at 9.30am on 27 November 2018 before Justice Baumann.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.