Legal Research
Cases
Tapp and Talbott and Anor

Tapp and Talbott and Anor

Case [2020] FamCA 57 10 February 2020

Type to search within this case.

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.
Contracts Review Act 1980 (NSW).
Family Court Rules 2004 r 1.04, 1.07(d).

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

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…

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 Tapp and Talbott and Anor

Details

AGLC: Tapp and Talbott and Anor [2020] FamCA 57
Case: [2020] FamCA 57
Decision Date: 10 February 2020

CaseChat Overview and Summary

In the matter of *Tapp and Talbott and Anor*, the applicant, identified as the de facto wife, brought an application before the District Court of New South Wales. The precise nature of the dispute is not detailed in the provided text, but it involved an application filed on 18 November 2019.

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

The de facto wife’s Application in a Case filed 18 November 2019 is dismissed.

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.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Tapp and Talbott and Anor [2020] FamCA 57

Most Recent Citation

Banduka & Banduka [2021] FedCFamC1F 191

Cases citing this decision · 3 of 3 shown

Banduka & Banduka
[2021] FedCFamC1F 191 Para 28

…is “foreseeable” that the caveators will not be paid in full if the orders sought by the wife are made, is unavoidable: see Tapp v Talbott [2020] FamCA 57 at [73]–[75] (“ Tapp ”).…
TALBOTT & TAPP
[2020] FamCA 391 Para 1

…he February Judgment”).[1] I will, however, subsequently set out the relevant background to this decision in respect to costs. [1] Tapp & Talbott [2020] FamCA 57.…
Crawford v Timms
[2020] NSWSC 380 Para 33

…2020. On 10 February 2020, McClelland DCJ published reasons for refusing to restrain Mr Crawford from prosecuting these proceedings ( Tynan & Timms [2020] FamCA 57). His Honour found, inter alia, that as the Family Court was unable to go behind the judgment debt (at [61]) and, in the absence of a draft pleading id…

View all 3 citing cases →

Cases cited in this decision · 10 of 10 shown

Mango Boulevard Pty Ltd v Spencer
[2008] QCA 274 Para 8

…ed in circumstances where the decision said to give rise to the estoppel is a default judgment. In that respect, in Mango Boulevard Pty Ltd v Spencer [2008] QCA 274, the Queensland Court of Appeal stated at [56]-[57]: In [Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993], a decision of the Privy Council, th…
Kelleher & Anderson
[2007] FamCA 137 Para 6

…tive relief carries the onus of establishing that there is a proper basis for granting the relief as sought in their application: Kelleher & Anderson [2007] FamCA 137 at [195].…
Sullivan v Sullivan
[2006] NSWCA 312 Para 1

…00 (NSW) (“the Real Property Act”). Those principles include, as noted by Brereton J in Buchanan v Crown & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24-513 (“ Buchanan ”) at 24,515: A highly relevant consideration is whether the removal of the caveat will derogate from the caveator's claim. There is great forc…
Buchanan v Crown & Gleeson Business Finance Pty Ltd
[2006] NSWSC 1465 Para 1

…aveat pursuant to s 74MA of the Real Property Act 1900 (NSW) (“the Real Property Act”). Those principles include, as noted by Brereton J in Buchanan v Crown & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24-513 (“ Buchanan ”) at 24,515: A highly relevant consideration is whether the removal of the caveat will derogate from the caveator's claim. There is…
Hunt v Hunt
[2006] FamCA 167 Para 1

…h are designed to ensure the discretion is carefully linked and sufficiently connected to the subject matter of the marriage and matrimonial causes ( Hunt v Hunt (2006) 36 Fam LR 64 at [119]. The third party must be afforded procedural fairness (s 90AF(3)(c)), and the order must be reasonably necessary, or reasonably…
Cardile v LED Builders Pty Ltd
[1999] HCA 18 Para 2

…In the High Court decision, Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at [31], the plurality said: …that the court may grant an injunction in all cases in which it appears to the court to be just and convenient to do so – does not confer an unlimited power to grant injunctive relief. Regard must still be had…
Leros Pty Ltd v Terara Pty Ltd
[1992] HCA 22 Para 1

…where a valid caveat will be removed for reasons of the balance of convenience. Thus in Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, Owen J said (at 50): However it seems to me interlocutory removal of a caveat where an arguable case as to the existence of a caveatable interest has been demonst…
Sanders v Sanders
[1967] HCA 33 Para 1

…doubt that a court exercising jurisdiction under ss 114 or 90SS of the Act can issue an injunction directly against a third party ( Sanders v Sanders (1967) 116 CLR 366). Relevant to the issues raised in these appeals, it is apparent that pursuant to s 90AF, in proceedings under s 114, the court may make injunctions…
[1975] AC 396
[1975] AC 396 Para 7

…de facto wife] the injunctive relief she seeks, this Court must have regard to the well-known principles in American Cyanide Co v Ethicom Ltd [1975] AC 396. The party seeking such relief must show the Court that there exists a serious tribal or justifiable issue between her and [the second Respondent].…
[1964] AC 993
[1964] AC 993 Para 8

…in Mango Boulevard Pty Ltd v Spencer [2008] QCA 274, the Queensland Court of Appeal stated at [56]-[57]: In [Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993], a decision of the Privy Council, the court was of the view that although a default judgment gave rise to a res judicata "a much more restricted ope…

Legislation cited in this decision · 6

Family Law Act 1975 (Cth)
114, 90AF, 90AF(3)(b), 90AF(4)(h), 90SM 6 mentions
Family Court Rules 2004 (Cth)
1.04, 1.07(d) 2 mentions
Real Property Act 1900 (NSW)
74MA, 74P 2 mentions
Contracts Review Act 1980 (NSW)
1 mention (from Para 12)
Family Law Rules 2004 (Cth)
1 mention (from Para 2)
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS)
1 mention (from Para 4)