St Claire and St Claire and Ors

[2012] FamCA 191

FAMILY COURT OF AUSTRALIA

ST CLAIRE & ST CLAIRE AND ORS [2012] FamCA 191

FAMILY LAW – INJUNCTION – Preservation of property

Family Law Act 1975 (Cth)

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 227 ALR 425

APPLICANT: Ms St Claire

RESPONDENT: Mr St Claire

2^ND RESPONDENT: E Pty Ltd

3^RD RESPONDENT Mr G

FILE NUMBER: MLC 9777 of 2010

DATE DELIVERED: 17 February 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: FC Law Lawyers

COUNSEL FOR THE 3^RD RESPONDENT Mr Wilson

SOLICITOR FOR THE 3^RD

RESPONDENT:

Trumble Szanto Lawyers

Orders

1. That until 4.00pm on 26 April 2012, Mr G be and is hereby restrained by injunction from further enforcing the judgment arising out of the Supreme Court of Victoria against E’s Pty Ltd.

2. That the outstanding application for injunctive relief is adjourned to 10.00am on 26 April 2012 as a half day submission case.

3. That the applicant have permission to serve a copy of this order upon the Sheriff of the Supreme Court of the State of Victoria.

4. That the wife file and serve any affidavit material upon which she intends to rely by 30 March 2012.

5. That the third party and the husband file and serve any further material upon which they intend to rely by 4.00pm on 24 April 2011.

6. That the reasons be transcribed.

7. That the costs of all parties this day be reserved.

8. That all outstanding applications for final orders are listed for hearing to commence on 3 July 2012 as the first case in the list commencing that day as an eight day matter.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9777 of 2010

Ms St Claire

Applicant

And

Mr St Claire

Respondent

And

E Pty Ltd

2^nd Respondent

And

Mr G

3^rd Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife in these proceedings for an anti-suit injunction against a party to those proceedings.  That third party has instituted proceedings in the Supreme Court of Victoria against a company which is the owner of the legal title to a house which is very much the subject of the dispute between the husband and the wife.  In the Supreme Court proceedings, judgment for possession has been entered on an undefended basis.  The proceedings have been brought on in this court on an urgent basis to stop enforcement of that judgment.  I am very much hamstrung by what I can accept as evidence, and obviously I can make no findings of fact in relation to most of the issues.  I am dealing basically with the pleadings.  I have been very much helped by the arguments of all counsel in the matter, but the reality is, a decision needs to be made.

2. The first question is whether there is jurisdiction to make a holding order that I have indicated I propose to make.  The case was brought on quickly, and the third party respondent whose rights are affected, has not had an opportunity to place before the court his material upon which findings can ultimately be made. 

3. This substantive application goes back to 2011, when the wife commenced proceedings in this Court for property orders.  In September 2011, she filed an amended initiating application in which she named the third party as a respondent.  On 7 December 2011, the third party filed a notice of address for service, and at this stage he has not sought to be removed.  The Court does not need at this stage, therefore, to determine whether or not there is a proper relief sought against him, he not having made an application to be removed. 

4. The substantive application of the wife seeks to set aside any deed or instrument to which the third party is a party. He has lodged a caveat over property which is the subject of the Supreme Court proceedings. In my view, the third party is subject to the orders of this court. Argument has been put to me this morning that there is no power to make an order by virtue of the wife not having satisfied the requirements of section 90AF of the Family Law Act. That particular provision does not trouble me today, because I am making a holding order and therefore I am exercising an inherent power to prevent the court’s jurisdiction being thwarted.

5. I rely on Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 227 ALR 425, and the decision also of the High Court in CSR Limited v Cigna Insurance Australia Ltd and Cardile v LED Builders Pty Ltd, both of which decisions are referred to in the Batistatos decision. 

6. One of the questions that I raised in argument was whether or not the Supreme Court proceedings having been concluded by judgment meant that there was no longer a suit against which an anti-suit injunction could be ordered.  There is authority in the English courts which extends the jurisdiction of the courts in that country to such things as the enforcement of the judgment.  The philosophy behind that is clear.  If a person has not acted in good faith in seeking the judgment, it would be inequitable for them to seek to enforce the consequential judgment.  The question is whether or not someone has acted in good faith.  If it is found that the person had not acted in good faith, then there is power to restrain him from executing against the judgment. 

7. There are difficulties associated with restraining parties who exercise their rights, as Mr Wilson quite properly described it.  The third party is a party to proceedings and the consequence of the enforcement of the judgment in, what I might describe as a foreign court or an alternate court, had the effect of removing the very dispute between the parties in this Court.  This Court therefore has the power to examine whether that action was taken in good faith.  If it was not, then this Court has power to grant the injunction. 

8. Clearly, I am not in a position at this stage to make any determination of fact, and I am not in a position to make any decision as to whether Mr G, as the third party, has acted in good faith.  There are other questions, about why the applicant had not gone to the Supreme Court to set aside the judgment.  I am quite satisfied that the Supreme Court would look to this Court and say that the jurisdiction of this Court is of a much wider ambit than what it would be exercising, and under those circumstances, I think the Supreme Court would probably not be troubled by the holding orders I propose to make. 

9. I am satisfied that there is an application before this Court.  It relates to a particular property.  I am satisfied that the third party was a party to these proceedings at the time that he exercised his rights at law to go to the Supreme Court.  That was clearly a time when he could have come to this Court.  I will leave open the question of whether that was an act of good faith or not for determination on another day.  If I do not make the injunction on an interim basis, then the whole issue in this Court might very well be thwarted.  On that basis, I propose to make the order. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 February 2012.

Associate: 

Date:  2 April 2012