Sellick and Sellick and Huntley - [2008] FMCAfam 1066

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SELLICK & SELLICK & HUNTLEY

[2008] FMCAfam 1066

FAMILY LAW – Property – nature of second respondent’s interest in the matrimonial property – equitable charge.

Family Law Act 1975 (Cth) ss.79, 117(1) & (2)

Morris v Morris [1982] 1 NSWLR 61
Chalmers v Pardoe [1963] 1 WLR 677
Giumelli v Giumelli (1999) 196 CLR 101
Cierpiatka v Cierpiatka (1999) FLC 99-864

Applicant:

MR SELLICK

First Respondent:

MS SELLICK

Second Respondent:

MS HUNTLEY

File Number:

PAC 6719 of 2007

Judgment of:

Henderson FM

Hearing dates:

1 & 2 September 2008

Date of Last Submission:

2 September 2008

Delivered at:

Parramatta

Delivered on:

4 September 2008

REPRESENTATION

Counsel for the Applicant:

Mr Maddox

Solicitors for the Applicant:

Dooley & Associates Solicitors

Counsel for the First Respondent:

Mr O’Gorman

Solicitors for the First Respondent:

Glenn R Walters & C0

Counsel for the Second Respondent:

Mr Thistleton

Solicitors for the Second Respondent:

Olivers Lawyers

ORDERS

A declaration of an equitable charge on the interest of the registered proprieties of the real property at Property K, (“the real property”) in favour of the second respondent Ms Huntley.
The applicant and first respondent be estopped from selling the real property unless on settlement they discharge the equitable charge of the second respondent by payment to her of the sum of $440,135.
The applicant and first respondent be restrained from interfering with the second respondent’s quiet enjoyment of the real property pending its sale.
The second respondent’s costs on a party-party basis as agreed or taxed from 6 May 2008 be paid to her from the net proceeds of sale of the real property and prior to any distribution to the applicant and first respondent.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 6719 of 2007

MR SELLICK

Applicant

And

MS SELLICK

First Respondent

MS HUNTLEY

Second Respondent

REASONS FOR JUDGMENT

This is a property matter heard on 1 and 2 September 2008. Mr Maddox of Counsel represented the applicant husband, Mr O'Gorman of Counsel represented the respondent wife, and Mr Thistleton, of Counsel represented the second respondent the maternal grandmother, Ms Huntley.
Ms Huntley’s application is contained in a statement of claim attached to her filed response.
This judgment will be delivered in two parts: Ms Huntley’s claim will be delivered first and the parties’ family law matter second although both matters were heard together. The matter came on for Final Hearing very quickly due impending action by the Bank to force a mortgagee sale of the property. I am grateful the parties were able to prepare the matter in such a short time frame.
The second respondent, Ms Huntley’s claim is that she has an interest in the husband and wife's property at Property K by way of an equitable charge. This charge creates a lien on the property the quantification…

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.

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Details

Case: [2008] FMCAfam 1066
Decision Date: 4 September 2008

CaseChat Overview and Summary

In the case of Sellick and Sellick and Huntley, the court was tasked with resolving a dispute between the parties regarding an equitable charge on a property. The case involved the applicant and the first respondent, who were the registered proprietors of a property, and the second respondent, Ms. Huntley, who sought a declaration of an equitable charge on the property. The dispute centred around whether Ms. Huntley had a valid claim to an equitable charge on the property and, if so, the extent of that charge.

The court had to determine whether Ms. Huntley had a valid equitable charge on the property and, if so, the amount of the charge. This required the court to examine the evidence and arguments presented by the parties, including any agreements or understandings between them regarding the property. The court also had to consider whether the applicant and first respondent were estopped from selling the property without discharging the equitable charge, and whether they were interfering with Ms. Huntley’s quiet enjoyment of the property.

The court found that Ms. Huntley had a valid equitable charge on the property, which amounted to $440,135. The court also found that the applicant and first respondent were estopped from selling the property without discharging the charge and that they were interfering with Ms. Huntley’s quiet enjoyment of the property. The court therefore made a declaration of an equitable charge in favour of Ms. Huntley, restrained the applicant and first respondent from selling the property without discharging the charge, and restrained them from interfering with Ms. Huntley’s quiet enjoyment of the property. The court also ordered that Ms. Huntley’s costs be paid from the net proceeds of sale of the property.

Orders

Orders of the court

A declaration of an equitable charge on the interest of the registered proprieties of the real property at Property K, (“the real property”) in favour of the second respondent Ms Huntley.

The applicant and first respondent be estopped from selling the real property unless on settlement they discharge the equitable charge of the second respondent by payment to her of the sum of $440,135.

The applicant and first respondent be restrained from interfering with the second respondent’s quiet enjoyment of the real property pending its sale.

The second respondent’s costs on a party-party basis as agreed or taxed from 6 May 2008 be paid to her from the net proceeds of sale of the real property and prior to any distribution to the applicant and first respondent.

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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