Southwell and Jane and Anor - [2012] FamCA 43

FAMILY COURT OF AUSTRALIA

SOUTHWELL & JANE AND ANOR

[2012] FamCA 43

FAMILY LAW – COSTS - Security for costs sought by third party - Costs orders under s 117 - Power to make orders for and against corporations

Family Law Act 1975 (Cth)

DJL v The Central Authority (2000) 201 CLR 226
Gerber & Bradley (formerly Gerber) and Ors (Security for Costs) [2011] FamCAFC 206
Halsbury & Halsbury [2008] FamCAFC 170
I Limited & Chester and Ors (Costs) [2011] FamCAFC 51
Luadaka & Luadaka (1998) FLC 92-830
Palma & Caleffi and Anor (Security for costs) [2011] FamCAFC 174
Penfold v Penfold (1980) 144 CLR 311
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184

APPLICANT:

Mr Southwell

RESPONDENT:

Ms Jane

2^ND RESPONDENT:

Southwell Investments Pty Ltd

FILE NUMBER:

MLC

1893

2007

DATE DELIVERED:

16 January 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

21 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wood

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Dr Wilson SC with Mr Thompson

SOLICITOR FOR THE RESPONDENT:

Pinto Law

COUNSEL FOR THE RESPONDENT:

Mr P Davis

SOLICITOR FOR THE RESPONDENT:

Middletons

Orders

That the application filed on 9 December 2011 by Southwell Investments Pty Ltd is dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC1893 OF 2007

Mr Southwell

Applicant

And

Ms Jane

Respondent

And

Southwell Investments Pty Ltd

2^nd Respondent

REASONS FOR JUDGMENT

By Application in a Case filed 9 December 2011, Southwell Investments Pty Ltd (“the company”) seeks an order against Ms Jane (“the wife”) for the security of its costs in the property proceedings between the husband and the wife.
The company in its capacity as the trustee of a family trust was joined to the proceedings by order of the Court. The issue involving the company is contentious. The husband (supported by the company) maintains that a sum of $215,000 should be added to the pool of assets to be divided between he and the wife on the basis that it is a sum owed to him by the trust. He points to the fact that the loan has been extant in the company’s books for something like 15 years. The wife maintains that the same loan is worth much more based on equitable principles yet to be argued.
The substantive proceeding came to an abrupt halt as a result of the issue of the joinder of the company and there have been a number of interlocutory orders and reasons given since. It is now suggested that the trial can resume.
Because of the impending resumption of the trial, the security for costs application was made. It was opposed by the wife.
On 21 December 2011, the matter was argued by Mr Davis of Counsel for the…

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 Southwell and Jane and Anor

Details

AGLC: Southwell and Jane and Anor [2012] FamCA 43
Case: [2012] FamCA 43
Decision Date: 16 January 2012

CaseChat Overview and Summary

Southwell Investments Pty Ltd (the applicant) sought to have a caveat lodged by Jane and Anor (the caveators) removed from title. The dispute concerned the caveators' claim to an equitable interest in land owned by the applicant.

The primary legal issue before Cronin J was whether the caveators had established a sufficient caveatable interest in the land to justify the continued presence of the caveat. This required the court to consider the nature of the agreement between the parties and whether it gave rise to a proprietary interest capable of supporting a caveat.

Cronin J found that the agreement between the parties did not create an equitable interest in the land that would support a caveat. The terms of the agreement were found to be personal in nature, creating contractual obligations rather than a proprietary right. Consequently, the applicant's application to remove the caveat was dismissed.

Orders

Orders of the court

That the application filed on 9 December 2011 by Southwell Investments Pty Ltd is dismissed.

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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