Shen and Shen (No. 2)

[2009] FamCA 554

FAMILY COURT OF AUSTRALIA

SHEN & SHEN (NO.2) [2009] FamCA 554

FAMILY LAW – INJUNCTION – Interim orders sought in relation to property – principles to be applied
FAMILY LAW – COSTS – Section 117(1) applied

Family Law Act 1975 (Cth) ss 79A, 114, 117(1)

Waugh and Waugh (2000) FLC 93-052
Penfold v Penfold 144 CLR 311

APPLICANT: Ms Shen

RESPONDENT: Mr Shen

FILE NUMBER: SYC 4250 of 2007

DATE DELIVERED: 9 June 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 9 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: A. Stenmark SC and T. Hodgson

SOLICITOR FOR THE APPLICANT: Austin Haworth & Lexon Legal

COUNSEL FOR THE RESPONDENT: M. Broun QC and R. Winfield

SOLICITOR FOR THE RESPONDENT: William Chan & Co.

Orders

1. That Orders numbered 2 and 4 made 15 April 2009 are set aside.

2. That the husband may take all steps as he may be advised to exercise his rights to lodge a caveat in accordance with the provisions of order 3(b) made 20 August 2007.

3. That the wife is restrained from taking any steps to cause a withdrawal or lapsing of such caveat provided that the caveat that is to be lodged is in registrable form unless otherwise agreed between the parties in writing or until further order.

4. Costs reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC4250 of 2007

MS SHEN

Applicant

And

MR SHEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. By her Application filed 28 April 2009, the wife has sought a review of orders made by Johnson JR on 15 April 2009. 

2. In particular the Order, being the subject of submissions, was Order 2 made on 15 April 2009, being an order which injuncted the wife from selling, disposing or further encumbering a property at H (which I shall refer to as “the former matrimonial home”).

3. On 20 August 2007, orders by way of property settlement were made by consent (which I shall refer to as “the consent orders”). 

4. The consent orders provided, inter alia, a transfer of interest which each of the parties held from one to the other in relation to the real estate which is specified. 

5. In particular, the husband was required to transfer to the wife the whole of his interest in the former matrimonial home.  There is no issue that that order has been complied with. 

6. Order 3(a) of the consent orders whilst not well drafted, in substance, is an injunction restraining the wife from:

   “To sell or otherwise dispose the matrimonial home up to and until 15 October 2014”.

7. Order 3(b) is an order, which enabled the husband to lodge a caveat upon the title of the matrimonial home.

8. The evidence before the Judicial Registrar and before me, given that the review application is a hearing de novo, is represented by the affidavit of the husband sworn on 5 March 2009.  I have read that affidavit as well as an affidavit of service on the wife, being an affidavit of A.S. sworn 20 March 2009.

9. When the matter came on for hearing before the Judicial Registrar, there was no appearance by or for the wife.  Indeed, there is no evidence before me by way of explanation for that non-appearance.  Consequently, it is understandable that the Judicial Registrar proceeded to determine the matter on an ex-parte basis.

10. The principles arising out of the Full Court judgment in Waugh[1] are now well established.  They have been summarised by senior counsel in her written outline of submissions which have been lodged this morning.  With respect to her, those submissions succinctly state the principles that should guide the issue of whether or not an interim injunction on the terms that are sought should be made.

    [1] Waugh and Waugh (2000) FLC 93-052

11. Consistent with the Full Court’s judgment in Waugh, there has to be some evidence of substance which may be persuasive of the Court to grant an interim injunction of the type that is sought.

12. The affidavit of the husband has much material in it.

13. It is noteworthy, however, for the lack of material in terms of evidence, to support the injunction that was granted and which is the subject of review before me.  The short answer is, that the evidence is outstanding by the lack of its persuasiveness or indeed of any substance at all.

14. Senior counsel for the husband has emphasised that correspondence was sent to the wife in order to ascertain her attitude to the injunction to be sought.  With respect to him, it is irrelevant as to whether the wife failed to respond or satisfactorily responded to that correspondence. The reason is that the substance of the case before me is there is a lack of evidence to attract the principles enunciated by the Full Court in Waugh.

Conclusion

1. Upon raising that matter with senior counsel for the husband, he quite properly conceded that an approach which could be taken in this case, and indeed, his client would be satisfied by the recognition or acknowledgment made by senior counsel for the wife, that the husband was entitled to lodge a caveat in accordance with Order 3(b) of the consent orders.  Implicit in that acknowledgment, assuming that the caveat was indeed in registrable form is that no steps should be taken to cause that caveat to be withdrawn or to lapse, unless in accordance with written agreement between the parties or until further order.  That is the approach which I will ultimately take in these proceedings.

Oral application for costs

1. Senior counsel for the wife seeks an order for costs.

2. It is of course well established in this jurisdiction, that as a general principle, each party bears his or her own costs as provided in section 117(1) of the Act.

3. However, should a circumstance be established that may make an order for costs just or proper, then there is a wide discretion to make such an order in accordance with the High Court’s judgment in Penfold[2].

   [2] Penfold v Penfold 144 CLR 311

4. It is conceded that the wife did not appear before Johnson JR on 15 April 2009, nor was there any appearance on her behalf, nor any communication sent to the Court explaining that lack of appearance. 

5. I accept senior counsel’s submission that such lack of appearance was due to a “misunderstanding” as a result of close attention not having been given to the endorsement on the front sheet of the husband’s application filed 6 March 2009, which noted that leave was granted to list the application on 15 April 2009.  That is a matter which I take into account.  In those circumstances, one can at least appreciate why the matter proceeded before Johnson JR.  In the absence of any submission being made on behalf of the wife, there was always a risk, as there is in all litigation, that orders might be made which may otherwise not have been made, should there have been cogent submissions made on her behalf.  Unfortunately that did not occur.

Conclusion

1. I am satisfied that a circumstance has not been established which would justify a departure from the general rule that each party bears his or her own costs.  In order that the issue of costs may be ventilated on the substantive hearing, if indeed the pending application by the husband for orders pursuant to section 79A is not settled, I will simply make an order that costs are reserved.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose  

Associate: 

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