FAMILY COURT OF AUSTRALIA
| SKYE & SAIDEL AND ANOR | [2020] FamCA 18 |
| FAMILY LAW – PROPERTY – Declaration pursuant to s78 Family Law Act 1975 (Cth) – where a declaration is made that the second respondent is the beneficial owner of the property in question – where the applicant and first respondent do all such things to transfer their right, title and interest in the property to the second respondent – where the matter proceeded undefended on the part of the husband FAMILY LAW – PROPERTY – CAVEATS – where two caveats were lodged over the property by creditors to secure business debts of the husband – where the caveators are found to not have a caveatable interest – where the caveators were served with these proceedings and put on notice however they did not intervene – where an order is made directing that the Registrar of Titles for Victoria remove the caveats over the property |
| Family Law Act 1975 (Cth) s 78 Land Titles Act 1994 (Qld) s 122 Transfer of Land Act 1958 (Vic) s 90(3), 106A Family Law Rules 2004 (Cth) r 11.02 |
| Auricchio & Auricchio & Ors (No 2) [2014] FamCA 240 Camden Pty Ltd and Laue and Ors (2018) FLC 93-840; 58 Fam LR 97; [2018] FamCAFC 91 Green & Wall [2019] FamCA 76 Lyons v Lyons [1967] VR 169 Masson v Parsons [2019] HCA 21; 93 ALJR 848 Muschinski v Dodds (1985) 160 CLR 583; 60 ALJR 52 Tailor & Tailor [2019] FamCA 383 Vaughan & Bele (No 2) [2012] FamCA 605 |
| APPLICANT: | Ms Skye |
| FIRST RESPONDENT: | Mr Saidel |
| SECOND RESPONDENT: | Ms Hewart |
| FILE NUMBER: | MLC | 8982 | of | 2018 |
| DATE DELIVERED: | 17 January 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 10 September 2019 and 8 October 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P. Testart |
| SOLICITOR FOR THE APPLICANT: | Testart Family Lawyers |
| THE FIRST RESPONDENT: | In Person |
| COUNSEL FOR THE SECOND RESPONDENT: | Ms Swann |
| SOLICITOR FOR THE SECOND RESPONDENT: | Lakey Family Lawyers |
Orders
IT IS DECLARED THAT
Pursuant to s 78 of the Family Law Act 1975 (Cth):
1.1.Ms Hewart (“the Second Named Respondent”) is the beneficial owner of the entire fee simple interest in the real property situated at B Street, Suburb C in the State of Victoria, and being the whole of the land more particularly described in Certificate of Title Volume … Folio … (B Street) to the exclusion of the Applicant Wife (“the Wife”) and the First Respondent Husband (“the Husband”);
1.2.The Husband not having a beneficial interest in B Street:
1.2.1.D Pty Ltd (the “first caveator”) does not have a caveatable interest and the charge based upon which caveat No AL… was registered on 29 December 2014 does not encumber B Street; and
1.2.2.The husband could not grant the mortgage to Mr E (the second caveator) based upon which caveat no AR… was registered on 22 August 2018, the mortgage does not encumber B Street and the second…
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- Skye and Saidel & Anor [2020] FamCA 18
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- [2020] FamCA 18
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CaseChat Overview and Summary
The court was required to determine whether Ms Hewart was the sole beneficial owner of the property, and consequently, whether the caveats lodged by D Pty Ltd and Mr E constituted valid caveatable interests. The court also had to make orders to give effect to its declarations regarding beneficial ownership and the removal of the caveats.
His Honour applied section 78 of the *Family Law Act 1975* (Cth) to declare that Ms Hewart was the sole beneficial owner of the property, to the exclusion of both the Wife and the Husband. Based on this declaration, the court found that neither D Pty Ltd nor Mr E had a caveatable interest in the property. The court further ordered, pursuant to section 90(3) of the *Transfer of Land Act 1958* (Vic.), that the Registrar of Titles for Victoria remove both caveats from the property's title.
The court made further orders directing the Wife and the Husband to transfer their respective interests in the property to Ms Hewart. These orders included provisions for the Registrar of the Federal Circuit Court to execute documents on behalf of either party if they refused or neglected to do so, and for the Wife to execute certain forms on behalf of both parties. Ms Hewart was also ordered to discharge the existing mortgage and refinance it in her sole name. The court noted that the orders were made with regard to section 81 of the *Family Law Act 1975* (Cth) to finally determine the financial relationship between the parties.
Orders
Orders of the court
IT IS DECLARED THAT
1.
Pursuant to s 78 of the Family Law Act 1975 (Cth):
1.1. Ms Hewart (“the Second Named Respondent”) is the beneficial owner of the entire fee simple interest in the real property situated at B Street, Suburb C in the State of Victoria, and being the whole of the land more particularly described in Certificate of Title Volume … Folio … (B Street) to the exclusion of the Applicant Wife (“the Wife”) and the First Respondent Husband (“the Husband”);
1.2. The Husband not having a beneficial interest in B Street:
1.2.1. D Pty Ltd (the “first caveator”) does not have a caveatable interest and the charge based upon which caveat No AL… was registered on 29 December 2014 does not encumber B Street; and
1.2.2. The husband could not grant the mortgage to Mr E (the second caveator) based upon which caveat no AR… was registered on 22 August 2018, the mortgage does not encumber B Street and the second caveator does not have a caveatable interest.
IT IS ORDERED THAT
2.
Pursuant to s 90 (3) of the Transfer of Land Act 1958 (Vic.), the Registrar of Titles for Victoria be and is hereby directed to remove caveats numbered AL… and AR… from the title to the real property
3.
A copy of the Reasons and the Orders made this day shall as soon as practicable be served upon the caveators and provided in due course to the Registrar of Titles.
4.
By 4.00 pm on 17 February 2020 the Wife shall do all such acts and things and sign all such documents necessary to transfer her right title and interest to and in the real property to the Second Respondent, Ms Hewart.
5.
By 4.00 pm on 17 February 2020 the Husband shall do all such acts and things and sign all such documents as necessary to transfer his right, title and interest to and in the real property to the Second Named Respondent.
6.
Contemporaneously with the transfers provided for in orders 4 and 5 herein, the Second Named Respondent shall do all such acts and things and sign all documents necessary to discharge the current F Bank mortgage encumbering the real property and to refinance the mortgage into her sole name.
7.
If either the Husband or the Wife refuses or neglects to sign (within seven (7) days of a written request to do so) any documents or do any act necessary to give effect to the terms of these Orders:
7.1. The Registrar of the Melbourne Registry of the Federal Circuit Court of Australia is hereby appointed pursuant to provisions of section 106A of the Family Law Act 1975 (Cth), to execute such documents on behalf of the Husband or the Wife.
7.2. Pursuant to section 106A of the Family Law Act 1975 (Cth), the Wife is hereby appointed to execute the client authorisation form and the State Revenue Office Duties form in the name of the Husband and the Wife in order to satisfy any online requirements to complete the transfer.
8.
Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:
8.1. The Husband and the Wife be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders;
8.2. Any money standing to the credit of the Husband and Wife jointly in any joint account to be divided equally between the Husband and the Wife;
8.3. The Husband and the Wife hereby forego any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;
8.4. All insurance policies are to become the sole property of the owner named hereon;
8.5. Each of the Husband and the Wife be liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
8.6. Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS FURTHER ORDERED
9.
That all extant applications be dismissed and removed from the list of cases awaiting hearing.
10. Certify for counsel.
AND THE COURT NOTES:
A. As far as it is practicable to do so, these Orders are made having regard to the provisions of s 81 of the Family Law Act 1975 (Cth) so as to determine for all time the financial relationship between the parties and avoiding further proceedings.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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