Samuels and Shaw and Ors - [2007] FamCA 833

FAMILY COURT OF AUSTRALIA

SAMUELS & SHAW AND ORS

[2007] FamCA 833

FAMILY LAW - APPLICATION TO DISCHARGE INTERIM INJUNCTION - Whether appropriate to discharge interim injunction pending determination of final hearing - Whether appropriate to make interim or partial property settlement order - Whether appropriate to appoint wife to have responsibility for sale of properties - Properties registered in name of third party and subject to proceedings in Equity Division of Supreme Court of NSW - Consideration of release of parties from proceedings - Whether appropriate to make order releasing party other than on party's application - Whether proceedings should be transferred to the Supreme Court of NSW - Whether final hearing should be deferred pending investigations of allegations of fraud and domestic violence

Conveyancing Act 1919 (NSW)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)
Property Relationships Act 1984 (NSW)

Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341
A.S.I.C. v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Chambers v Jones [1902] 2 SR NSW 177
Johnstone v Johnstone [1902] SR NSW 90
Harris & Harris (1993) FLC 92-378
Miller v Cameron & Ors (1936) 54 CLR 572
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
Re Wakim; Ex Parte McNally & Anor (1999) 198 CLR 155
Warby v Warby (2002) FLC 93-091

APPLICANT:

Ms Samuels

FIRST RESPONDENT:	Mr Shaw
SECOND RESPONDENT:	Mr P
THIRD RESPONDENT:	L Pty Ltd
FOURTH RESPONDENT:	D Pty Ltd
FIFTH RESPONDENT:	Ms E
SIXTH RESPONDENT:	Mr G
SEVENTH RESPONDENT:	Mr A
EIGHTH RESPONDENT:	Ms J
NINTH RESPONDENT:	Ms S
TENTH RESPONDENT:	Ms T

FILE NUMBER:

SYF

5191

1993

DATE DELIVERED:

17 August 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Boland J

HEARING DATES:

26 July 2007, 8 August 2007

REPRESENTATION

ADVOCATE FOR APPLICANT:	The Applicant in person
ADVOCATE FOR 1^ST RESPONDENT:	The First Respondent in person
ADVOCATE FOR 2^ND RESPONDENT:	The Second Respondent in person

Orders

The orders made by Judicial Registrar Knibbs on 21 April 1999 are discharged.
Order 1 of the orders made by the Rose J on 20 December 2006 is discharged.
The husband provide to the wife in writing before 3 September 2007 details of any superannuation fund of which he is currently a member.
That paragraphs 1 to 15, and 17 of the wife’s Application in a Case filed 10 July 2007 are dismissed.
The wife’s Application in a Case filed 17 July 2007 is dismissed.
The wife’s Application in a Case filed 26 July 2007 is dismissed.
Costs of the Application in a Case filed 10 July 2007, Further Application in a Case filed 17 July 2007, Response to an Application in a Case filed 26 July 2007 by the third respondent and Response to an Application in a Case filed 26 July 2007 by the husband be reserved to the final hearing.

AND THE COURT NOTES the undertaking of the Second Respondent, Mr P as follows:

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 Samuels and Shaw and Ors

Details

AGLC: Samuels and Shaw and Ors [2007] FamCA 833
Case: [2007] FamCA 833
Decision Date: 17 August 2007

CaseChat Overview and Summary

In the matter of *Samuels and Shaw and Ors*, Boland J considered applications by the wife and the husband, and a third respondent, concerning property settlement and related matters. The proceedings involved a dispute over the division of assets, including superannuation and real estate, and sought to discharge or vary previous orders made by Judicial Registrar Knibbs and Rose J.

The court was required to determine the validity and enforceability of various applications made by the wife, and to consider the husband's obligations regarding disclosure of superannuation interests. Additionally, the court had to address undertakings provided by a second respondent, Mr P, concerning mortgaged properties.

Boland J discharged earlier orders made by Judicial Registrar Knibbs and Rose J, and dismissed several of the wife's applications. The court ordered the husband to provide written details of any superannuation funds of which he was a member by a specified date. The court also noted and accepted undertakings from Mr P regarding the mortgage over properties and notice of any exchange of contracts. Costs for certain applications were reserved to the final hearing.

Orders

Orders of the court

The orders made by Judicial Registrar Knibbs on 21 April 1999 are discharged.

Order 1 of the orders made by the Rose J on 20 December 2006 is discharged.

The husband provide to the wife in writing before 3 September 2007 details of any superannuation fund of which he is currently a member.

That paragraphs 1 to 15, and 17 of the wife’s Application in a Case filed 10 July 2007 are dismissed.

The wife’s Application in a Case filed 17 July 2007 is dismissed.

The wife’s Application in a Case filed 26 July 2007 is dismissed.

Costs of the Application in a Case filed 10 July 2007, Further Application in a Case filed 17 July 2007, Response to an Application in a Case filed 26 July 2007 by the third respondent and Response to an Application in a Case filed 26 July 2007 by the husband be reserved to the final hearing.

AND THE COURT NOTES the undertaking of the Second Respondent, Mr P as follows:

A. I [Mr P], of [B1 property], Director of L Pty Ltd, undertake to the Court pending further order of the Court, not to increase the mortgage held over properties [B1 and B2], identified as f … and f …, or to refinance the mortgage.

B. I also undertake to give 21 days notice of any exchange of contracts in respect of either or both [B1 and B2].

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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