Siebel and Siebel and Anor - [2019] FCCA 3367

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIEBEL & SIEBEL & ANOR

[2019] FCCA 3367

Catchwords:
FAMILY LAW – Property – application for an adjournment by the Applicant Husband – application refused – Applicant did not attend Court – application to proceed undefended – application granted – where the Second Respondent is the parties’ son – whether a property registered in the name of the Second Respondent is held on constructive, implied, or resulting trust for the Applicant and First Respondent – if so, whether the property forms part of the property pool – finding that the property is the property of the Second Respondent – property pool otherwise modest – Orders made consistent with the First Respondent’s proposal.

Legislation:

Family Law Act 1975 (Cth), s.79
Transfer of Land Act 1958 (Vic) s.90(3)

Cases cited:

Calverly v Green (1984) 155 CLR 242

F Firm & Ruane and Ors [2014] FamCAFC 189

Green v Walls (2019) FamCA 76

Piroshenko v Grojsman & Ors [2010] VSC 240

Vadisanis v Vadisanis (2014) 53 Fam LR 345

Applicant:

MR SIEBEL

First Respondent:

MS SIEBEL

Second Respondent:

MR F SIEBEL

File Number:

MLC 13012 of 2017

Judgment of:

Judge Blake

Hearing date:

30 October 2019

Date of Last Submission:

30 October 2019

Delivered at:

Melbourne

Delivered on:

21 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr Hoult

Solicitors for the Applicant:

Waters Lawyers Pty Ltd

Counsel for the First Respondent:

Mr Puckey

Solicitors for the First Respondent:	Berger Kordos Lawyers
Counsel for the Second Respondent:	Mr Nehmy
Solicitors for the Second Respondent	Aitken Partners

ORDERS

The Wife retain her Motor Vehicle A, number plate ….
The Husband retain his Motor Vehicle B, number plate ….
The Husband vacate the real property known as C Street, Town D, Victoria within seven days.
The Husband do all things and sign all documents required to withdraw at his expense Caveat number … lodged against Title to the Property and in the event of his failure to do so within 14 days of the date of this order, the Registrar of Titles is directed pursuant to section 90(3) of the Transfer of Land Act 1958 to remove the Caveat.
The Authorised Persons be and are hereby authorised and directed with such assistance as they or any of them shall require, and if necessary by force, to do all such acts and things as shall be necessary to cause, enable, facilitate, enforce and ensure:
(a)the prompt and effective delivery up of vacant possession of the Property to the Second Respondent; and
(b)the prompt and effective implementation of the provisions of these orders.
The Husband within seven days do forthwith:
(a)vacate the Property; and
(b)relinquish possession of the chattels, fixtures and fittings situate at the Property.
The Husband, his servants and agents be restrained by injunction from:
(a)entering or remaining within 500 m of the Property (or any part thereof);
(b)selling, disposing of, transferring, assigning, adversely dealing with, charging, encumbering, further encumbering or otherwise dealing or attempting to deal in any way…

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 Siebel and Siebel and Anor

Details

AGLC: Siebel and Siebel and Anor [2019] FCCA 3367
Case: [2019] FCCA 3367
Decision Date: 21 November 2019

CaseChat Overview and Summary

In the matter of *Siebel and Siebel and Anor*, Judge Blake of the Federal Circuit Court of Australia considered an application for property settlement between a husband (the Applicant) and his wife (the First Respondent), with their son (the Second Respondent) also involved due to a property dispute. The Applicant husband sought an adjournment, which was refused, and he failed to attend court. Consequently, the court proceeded to hear the matter undefended and granted the application to proceed on that basis.

The central legal issues before the court were whether a property registered in the name of the Second Respondent was held on a constructive, implied, or resulting trust for the Applicant and First Respondent, and if so, whether this property should be included in the divisible asset pool. The court was also required to determine the division of the remaining, otherwise modest, property pool.

Judge Blake found that the property registered in the Second Respondent's name was indeed the property of the Second Respondent and not held on trust for the parties. The court's reasoning led to orders that reflected the First Respondent's proposal for the division of the remaining assets. These orders included the retention of motor vehicles by each party, the husband vacating the real property within seven days, and directions for the removal of a caveat lodged by the husband against the title of the property. The court also authorised persons to ensure the prompt delivery of vacant possession of the property to the Second Respondent and the implementation of the orders, and restrained the husband from dealing with the property or its contents. The parties were otherwise entitled to property in their possession, with specific provisions for chattels and liabilities.

Orders

Orders of the court

The Wife retain her Motor Vehicle A, number plate ….

The Husband retain his Motor Vehicle B, number plate ….

The Husband vacate the real property known as C Street, Town D, Victoria within seven days.

The Husband do all things and sign all documents required to withdraw at his expense Caveat number … lodged against Title to the Property and in the event of his failure to do so within 14 days of the date of this order, the Registrar of Titles is directed pursuant to section 90(3) of the Transfer of Land Act 1958 to remove the Caveat.

The Authorised Persons be and are hereby authorised and directed with such assistance as they or any of them shall require, and if necessary by force, to do all such acts and things as shall be necessary to cause, enable, facilitate, enforce and ensure:

(a)the prompt and effective delivery up of vacant possession of the Property to the Second Respondent; and

(b) the prompt and effective implementation of the provisions of these orders.

The Husband within seven days do forthwith:

(a)vacate the Property; and

(b) relinquish possession of the chattels, fixtures and fittings situate at the Property.

The Husband, his servants and agents be restrained by injunction from:

(a)entering or remaining within 500 m of the Property (or any part thereof);

(b) selling, disposing of, transferring, assigning, adversely dealing with, charging, encumbering, further encumbering or otherwise dealing or attempting to deal in any way whatsoever with the Property or the chattels, fixtures and fittings at the Property (or any part thereof);

(d) doing, causing, enabling, authorising or facilitating any act or thing which has or may have the effect of:

(i) demolishing, razing, dismantling, harming, breaking, defacing, polluting or damaging the Property or chattels, fixtures and fittings at the Property (or any part thereof) in any way whatsoever;

(ii) diminishing of the utility or marketability of the Property or the chattels, fixtures and fittings at the Property (or any part thereof);

(iii) diminishing the value of the Property (or any part thereof).

Unless otherwise specified, and save for the purposes of enforcement:-

(a) the Husband and Wife be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as the date of these Orders save for the chattels, fixtures and fittings at the Property which are to be deemed to be in the possession of the Wife and are to be retained by her for her sole use and benefit;

(b) the Husband and Wife be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;

All extant applications are otherwise dismissed and the matter removed from the list of pending cases.

NOTATION:

In these orders,

(a) “the Authorised Persons” means and includes:

(i) The second respondent Mr F Siebel, the Wife and their solicitors, servants and/or agents;

(ii) The Registrars of the Federal Circuit Court of Australia, and their servants and/or agents;

(iii) The Marshall of the Federal Circuit Court of Australia and his servants and/or agents;

(iv) All agents and officers of the Australian Federal Police;

(v) All agents and officers of the Victoria Police; and

(vi) All Sheriffs of all Courts in the State of Victoria and their servants and/or agents;

(b) the ‘Property’ means and includes all those parcels of land situate at and known as C Street, Town D situate at C Street, Town D, Victoria being the land more particularly described in Certificates of Title volume … and folio ….

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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