Tadgell and Hahn

[2012] FMCAfam 74

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TADGELL & HAHN [2012] FMCAfam 74

FAMILY LAW – Whether husband and wife have equitable interest in property – whether wife has reasonable prospect of establishing claim of equitable interest.

Family Law Act 1975 (Cth)
Federal Magistrates Act 1999 (Cth), s.17A

Friar & Friar [2009] FamCA 295
Beck [2004] FamCA 92; (2004) FLC 93-181
Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
Grundlt (1937) 59 CLR at 675
Young v Lalic [2006] NSWSC 18 at 74
The Commonwealth v Verwayen (1990) 170 CLR 394 at 487
Grant v Edwards [1986] Ch 638
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101

Applicant: MS TADGELL

Respondent: MR HAHN

File Number: MLC 7358 of 2009

Judgment of: Phipps FM

Hearing date: 15 July 2011

Date of Last Submission: 15 July 2011

Delivered at: Dandenong

Delivered on: 31 January 2012

REPRESENTATION

Counsel for the Applicant: Mr Moisidis

Solicitors for the Applicant: Meier Denison Guymer

Counsel for the Respondent: Mr Crozier-Durham

Solicitors for the Respondent: (omitted)

ORDERS

1. The application to join Ms S as a respondent to the proceeding and amend the application is dismissed.

2. The question of costs be reserved to 15 March 2012 at 9.45am in the Federal Magistrates Court of Australia at Dandenong.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DANDENONG

MLC 7358 of 2009

MS TADGELL

Applicant

And

MR HAHN

Respondent

REASONS FOR JUDGMENT

1. The applicant wife applies for property orders.  The current parties are the wife and the husband.  For many years prior to separation the parties’ matrimonial home was a property owned by the husband’s mother, Ms S, and registered in her name.

2. The wife alleges that she and her husband have an equitable interest in the former matrimonial home.  The wife now applies to join Ms S as a party to these proceedings and to file an amended application to claim that she and her husband have an equitable interest in the property.  Both the husband and his mother oppose the application.  They oppose it because they say the applicant has no reasonable prospects of success in any claim against her husband's mother.

3. Both the husband and his mother filed and relied on affidavits and were represented at the hearing.  The test to be applied is the same as the test in a summary judgment application.  There was some discussion at the hearing whether Ms S should first be joined and then the application be treated as a summary judgment application by the husband and his mother or whether the substantive argument should be whether Ms S should be joined.  The latter course was adopted.  The test is the same, that is whether the applicant has a reasonable prospect of success in her claim against Ms…