Thorpe and Thorpe and Anor

FAMILY COURT OF AUSTRALIA

THORPE & THORPE AND ANOR [2012] FamCA 719

FAMILY LAW - PRACTICE AND PROCEDURE – Part heard application by a third party for summary dismissal of wife’s claim – Whether the wife’s application is doomed to fail – Whether the wife has established a claim in equity in respect of land owned by third party - wife’s application against third party dismissed

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Thorpe

FIRST RESPONDENT: Mr Thorpe

SECOND RESPONDENT: Ms R Thorpe

FILE NUMBER: CSC 547 of 2009

DATE DELIVERED: 4 July 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 4 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Sinclair

SOLICITOR FOR THE APPLICANT: Bottoms English Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr P Tree S.C

SOLICITOR FOR THE FIRST

RESPONDENT:

Apels Solicitors

COUNSEL FOR THE SECOND

RESPONDENT:

Mr P Tree S.C

SOLICITOR FOR THE SECOND

RESPONDENT:

Farrellys Lawyers

Orders

1. The proceedings brought by the applicant wife against the second respondent are summarily dismissed.

2. The applicant wife shall pay the first and second respondent’s costs determined in accordance with the Rules and scales under the Family Law Act (including certification for Senior Counsel), payment of such costs to be stayed pending either determination of the property proceedings between the husband and wife or such other time as is ordered by a Court exercising jurisdiction under the Family Law Act.

3. The costs application of the husband as against the wife in respect of the summary dismissal application be reserved.

4. These proceedings be adjourned to a Registrar’s Directions hearing at 10.00 am on 27 August 2012 at Cairns in respect of the property proceedings between the husband and wife.

   IT IS CERTIFIED

5. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thorpe & Thorpe and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 547 of 2009

Ms Thorpe

Applicant

And

Mr Thorpe

First Respondent

Ms R Thorpe

Second Respondent

REASONS FOR JUDGMENT

1. These are part heard proceedings for the summary dismissal of equitable proceedings either accrued to this Court or under the relatively new provisions of the Family Law Act 1975 (Cth) (“the Family Law Act”) with regard to third parties.

2. The application was first heard by me in October last year and was the subject of significant debate as to the nature of the claim against the second respondent.  After hearing submissions, I considered those matters and delivered reasons in relation to the application.  The reason I did so is quite clear, that the claim made against the third party or the second respondent had some defects which, effectively, made the claim almost fatally flawed.  It seemed to me that the claim of the wife in…