Reed and Connolly and Anor

[2015] FCCA 3565

FEDERAL CIRCUIT COURT OF AUSTRALIA

REED & CONNOLLY & ANOR [2015] FCCA 3565

Catchwords:
FAMILY LAW – Application for the removal of a caveat – application for costs “thrown away” – orders made for the removal of the caveat to be signed by a court officer under s.106A of the Family Law Act 1975 (Cth).

Legislation:

Family Law Act 1975, s.106(A)

Applicant: MS REED

Respondent: MR CONNOLLY

Third Party MS CONNOLLY

File Number: MLC 8932 of 2012

Judgment of: Judge Wilson

Hearing date: 14 December 2015

Date of Last Submission: 14 December 2015

Delivered at: Melbourne

Delivered on: 14 December 2015

REPRESENTATION

Counsel for the Applicant: Mr G Devries

Solicitors for the Applicant: Morgan Legal

Counsel for the Respondent: No appearance by the Respondent

Counsel for the Third Party Mr G Stanley

Solicitors for the Third Party Rose Lawyers

ORDERS

1. Caveat number (omitted) registered on title of the property situate at and known as Property Y in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the caveat”) be forthwith removed.

2. Pursuant to s.106(A)(1) of the Family Law Act 1975 a Registrar of the Court at the Melbourne Registry be appointed to forthwith execute a withdrawal of the caveat in the name of (omitted) Pty Ltd and do all acts and things necessary to give validity and operation to the said withdrawal of caveat.

3. At the settlement or the sale of the aforesaid property the proceeds of sale be disbursed in accordance with Order 9 of the Orders made herein on 29 April 2015 save that any monies payable to the Applicant husband as provided therein be disbursed as follows:

   (a)To the costs associated with the conveyance and “thrown away” by reason of the failure of the settlement fixed for 27/11/15 incurred by the wife fixed at $2,532.10.

   (b)Pursuant to Federal Circuit Court Rules r.21.07, to the costs of the wife fixed at $4,837.00 (comprising Initiating Application $2,048.00 daily hearing fee and advocacy loading $1,636.00 and attendance of solicitor $1,153.00) and to the costs of the third party fixed at $2,789.00 (comprising daily hearing fee and advocacy loading $1,636.00 and attendance of solicitor $1,153.00)

4. The balance of the proceeds of sale then remaining be paid into the Supreme Court Fund to abide determination and/or Court Order as to disbursement of those monies between the husband and his former solicitors (omitted) Pty Ltd.

5. Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

6. All extant applications otherwise be dismissed.

THE COURT NOTES:

1. Pursuant to rule 21.07(4) (omitted) Pty Ltd was given notice of the application for costs of the wife and third party by reason of the Application in a Case and the proposed Orders sought by the wife and attended Court on the Application.

IT IS NOTED that publication of this judgment under the pseudonym Reed & Connolly & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8932 of 2012

MS REED

Applicant

And

MR CONNOLLY

First Respondent

And

MS CONNOLLY

Third Party

REASONS FOR JUDGMENT

(Revised from transcript)

1. Pursuant to s.106A of the Family Law Act 1975 (Cth) (“the Act”), an order is sought that an officer of the Court be appointed to execute a removal of caveat that previously has been registered in the name of (omitted) Pty Ltd and to do all things to give effect to that removal. (omitted) has lodged caveat (omitted) against land described as, alternatively, Property Y in the State of Victoria, being the land referred to as Certificate of Title Volume (omitted) Folio (omitted).

2. (omitted) asserts that it is entitled to maintain its caveat on the basis that it is owed fees that have been rendered and which are secured pursuant to a charge that gives, so (omitted) says an equitable interest in the property such as to support its caveatable interest. With leave, today I permitted Ms K (“Ms K”) to represent the company of which she is a director in the application before this Court.

3. During discussions with Ms K, it became apparent that no evidence had been adduced to support the existence of the charge or the underlying debt that was said to be owed, nor was she able to produce any evidence of the amount.

4. The situation remained that no evidence was adduced before me as to the existence of the charge that (omitted) claimed or the existence of a debt owed pursuant to it. Money owed to (omitted) was, more properly, the foundation of a common law debt claim. If Ms K and (omitted) asserted an entitlement to be paid, she ought to have but failed to issue proceedings in a common law court of competent jurisdiction for the recovery of that debt. 

5. Ms K was unable to provide any material before me to support the equitable charge alleged nor the existence of the material underpinning the caveat. I raised with Ms K the fact that she appeared to be an interloper in this proceeding as this proceeding did not concern (omitted)’s interest and no leave had been granted for her or (omitted) to intervene.

6. In view of the fact that the charge, the debt or the interest claimed by (omitted) was wholly unproved, I made orders giving effect to the application sought for the removal of the caveat.

7. I am willing to make orders for counsel at $1400.00 and for their instructors at $1153.00.

8. I make orders in terms of the minutes which I have initialled and I direct be placed on the court file. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date:  28 January 2016