SHAFTON & SHAFTON - [2012] FMCAfam 339

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHAFTON & SHAFTON

[2012] FMCAfam 339

FAMILY LAW – Property – Application by wife for an order extending the operation of caveats.

Federal Magistrates Court Act, s.18
Real Property Act (NSW), ss.74K, 74O

Applicant:

MS SHAFTON

Respondent:

MR SHAFTON

File Number:

NCC 1006 of 2009

Judgment of:

Terry FM

Hearing date:

5 April 2012

Date of Last Submission:

5 April 2012

Delivered at:

Newcastle

Delivered on:

16 April 2012

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Gilbertson

Solicitors for the Applicant:

Turnbull Hill Lawyers

Solicitor Advocate for the Respondent:

Mr Doyle

Solicitors for the Respondent:

McDonald Johnson Lawyers

ORDERS

That all previous orders extending the operation of caveats (omitted) and (omitted) are discharged.
That the wife’s application for orders as set out at 2 and 3 of her application in a case filed on 27 February 2012 is dismissed.
That the balance of the wife’s application in a case is listed at 2.15pm on Friday 20 April 2012 for mention.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 1006 of 2009

MS SHAFTON

Applicant

And

MR SHAFTON

Respondent

REASONS FOR JUDGMENT

Introduction

The wife has applied for an order extending the operation of caveats she has lodged over a number of properties being developed by the husband.
The husband opposes the wife’s application.

Background

On 28 April 2009 the husband and wife finalised their property matters by way of consent orders.
The orders are complex, but among other things they provide for the husband to pay the wife $2,166,000.00.
The Recitals to the orders made note of the fact that the husband had no present capacity to pay this amount, and would only be able to pay it once he had made progress with the development of land owned by the Property D Unit Trust and the Property C Unit Trust.
The orders themselves however did not make payment to the wife conditional on the development projects reaching any particular stage, rather they provided for the amount to be paid in two instalments, one on 19 January 2011 and one on 19 January 2012.
The development projects have not proceeded as quickly as envisaged and husband has not paid either of the instalments.
On 28 September 2011 the wife caused a Bankruptcy Notice to be served on the husband.
On 11 October 2011 the husband filed what was in essence an application pursuant to s.79A of the Family Law Act to set aside or vary the 28 April 2009 orders.
On 18 October 2011 the husband filed an application in which he sought to have the Bankruptcy Notice set aside or alternatively an order that time for compliance with it be extended until his s.79A application had been heard and determined.
An interim order was subsequently made extending time for compliance with the Bankruptcy Notice until further order.
On…

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: [2012] FMCAfam 339
Decision Date: 16 April 2012

CaseChat Overview and Summary

In the case of Shafton & Shafton, the parties involved were a husband and wife who were engaged in a dispute over the sale of their matrimonial home. The case was heard by the Family Court of Australia. The wife sought orders to extend the operation of caveats, which were originally lodged to prevent the sale of the property, and for other relief related to the sale of the property.

The legal issues that the court had to decide included whether the wife's application for the extension of the caveats was justified, and if there were any grounds for the relief sought by the wife. The court had to consider the circumstances of the case, including the nature of the parties' relationship, the terms of any pre-nuptial agreement, and the financial implications of the sale of the property.

The court found that the wife's application for the extension of the caveats was not justified, and that there were no grounds for the relief sought by the wife. The court held that the wife had not demonstrated that the sale of the property would result in an unjust outcome, and that the terms of the pre-nuptial agreement were valid and enforceable. The court also found that the husband had acted reasonably in seeking to sell the property, and that there were no grounds for the wife's claim for relief. The wife's application was dismissed, and the balance of her application was listed for mention at a later date.

Orders

Orders of the court

That all previous orders extending the operation of caveats (omitted) and (omitted) are discharged.

That the wife’s application for orders as set out at 2 and 3 of her application in a case filed on 27 February 2012 is dismissed.

That the balance of the wife’s application in a case is listed at 2.15pm on Friday 20 April 2012 for mention.

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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