FAMILY COURT OF AUSTRALIA
| TAPP & TALBOTT AND ANOR | [2020] FamCA 57 |
| FAMILY LAW – PROPERTY – Interim Proceedings – Where the de facto wife seeks injunctions be ordered against the second Respondent preventing him from enforcing a judgment debt obtained the Supreme Court of New South Wales through default judgment – Where the de facto wife seeks an injunction be ordered for the second Respondent to remove a caveat lodged over the de facto parties former relationship home – Where the de facto husband acknowledges the judgment debt and accepts it has been properly obtained – Where the de facto husband and second Respondent oppose the Application of the de facto wife – Where the de facto wife and husband purchased the property from the second Respondent and entered into a mortgage agreement and side deed in respect of $1,000,000 – Where the second Respondent lodged a caveat over the property to protect his interests – Where both the de facto husband and wife signed the mortgage, side deed and also the caveat – Where the de facto wife contends that the terms of the side deed were unfair – Where the wife asserts there was a power imbalance between the de facto husband and wife at the time the transactions were entered into – Where the Court determines that the wife’s Application falls foul of s 90AF(3)(b) of the Family Law Act 1975 – Where the Court determines that the de facto wife’s Application requiring the second Respondent to remove the caveat over the property lacks merit – Orders made dismissing the Application – Leave granted for the parties to view and photocopy material produced on subpoena. |
| Family Law Act 1975 (Cth) ss. 90AF, 90AF(3)(b), 90AF(4)(h), 90SM, 114. Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) Real Property Act 1900 (NSW) ss 74MA, 74P. |
| Buchanan v Crown & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24,513. Cardile v LED Builders Pty Ltd (1999) 198 CLR 380. In the marriage of Caddy & Miller (1986) FLC 91-720. In the marriage of Smith & Saywell (1980) FLC 90-856. Kelleher & Anderson [2007] FamCA 137. Mango Boulevard Pty Ltd v Spencer [2008] QCA 274. Pegasus Leasing Ltd v Balescope Pty Ltd (1994) 63 SASR 51. Sanders v Sanders (1967) 116 CLR 366. XYZ Pty Ltd & Charisteas & Ors (2017) FLC 93-782. |
| APPLICANT: | Ms Tapp |
| RESPONDENT: | Mr Talbott |
| SECOND RESPONDENT : | Mr Cales |
| FILE NUMBER: | SYC | 2557 | of | 2017 |
| DATE DELIVERED: | 10 February 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 4 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dura |
| SOLICITOR FOR THE APPLICANT: | Walter & Elliott Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Anne Einfeld Solicitor |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr O'Brien |
| SOLICITOR FOR THE SECOND RESPONDENT: | Allsop Glover Lawyers |
Orders
The de facto wife’s Application in a…
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- AGLC
- Tapp and Talbott and Anor [2020] FamCA 57
- Case
- [2020] FamCA 57
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was the determination of the de facto wife's application. The Court was also required to consider the appropriate orders regarding access to and photocopying of documents produced by the Commonwealth Bank of Australia, which had been obtained via a subpoena issued at the de facto wife's request. Furthermore, the Court needed to address the question of costs associated with the proceedings.
The Court dismissed the de facto wife's application. It granted the parties leave to access and photocopy the documents produced by the Commonwealth Bank of Australia. The parties were also given liberty to apply to the Court concerning the issue of costs.
Orders
Orders of the court
1.
The de facto wife’s Application in a Case filed 18 November 2019 is dismissed.
2.
The parties have leave to access and photocopy documents produced by the Commonwealth Bank of Australia to this Court pursuant to a subpoena issued by the de facto wife.
3.
The parties have liberty to apply in respect to the question of costs.
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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