TREVI & TREVI - [2015] FamCA 123

FAMILY COURT OF AUSTRALIA

TREVI & TREVI

[2015] FamCA 123

FAMILY LAW – PROPERTY – Application for removal of caveats – consideration of nature of caveatable interest – consideration of nature of claim on which the substantive application is brought – orders made for removal of caveats and associated costs – restraining order.

Family Law Act 1975 (Cth), ss. 31, 78, 79, 114.

Auricchio & Auricchio and Ors (No 2) [2014] FamCA 240
Australian Eagle Insurance Co Ltd v Parry (1992) ANZ ConvR 166
Dembitzer vMills (1980) NSWLR 697
In the Marriage of Stevens (1991) 15 Fam LR 51

APPLICANT:

Mr Trevi

RESPONDENT:

Ms Trevi

FILE NUMBER:

MLC

8475

2014

DATE DELIVERED:

2 March 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

13 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms M. Smallwood

SOLICITOR FOR THE APPLICANT:

King & Wood Mallesons

COUNSEL FOR THE RESPONDENT:

Mr R. Weil

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

The respondent wife shall forthwith take all necessary steps to cause the relevant Registrar of Titles to remove the caveats from the titles of the following properties:
(a)       1 Street, Suburb A, Victoria;
(b)       2 Street, Suburb A, Victoria;
(c)       3 Street, Suburb A, Victoria; and
(d)       C Street, Suburb D, Queensland.
Paragraph 1 of the wife’s Response to an Application in a Case filed 13 February 2015 is dismissed.
The wife shall meet any necessary costs associated with the removal of the caveats.
Until further order, the respondent wife be restrained from lodging any further caveats on the titles pertaining to the properties referred to in paragraph 1 of these orders.
The applications sought in paragraph 3 of the husband’s Application in a Case and paragraphs 2 to 13 of the wife’s Response to the husband’s Application in a Case be adjourned for management as to listing by the Registrar docketed with the management of the file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trevi & Trevi 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 MELBOURNE

FILE NUMBER: MLC 8475 of 2014

Mr Trevi

Applicant

And

Ms Trevi

Respondent

REASONS FOR JUDGMENT

Introduction

This is an Application in a Case brought by the husband seeking that the wife remove caveats from three titles of properties in Suburb A, Victoria, registered in the name of the husband. Those properties are 1 and 2 B Street, Suburb A (“the property in which the husband lives”) and 3 Street, Suburb A (“the tenanted Suburb A property”). The property at 2 B Street is a small accessory block on a separate title but is also occupied by the husband. The husband also sought that the wife remove a caveat on a property registered in his name, at C Street, Suburb D, in Queensland (“the Queensland property”), because at the time of filing the application he was uncertain whether…

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.

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Details

AGLC: TREVI & TREVI [2015] FamCA 123
Case: [2015] FamCA 123
Decision Date: 2 March 2015

CaseChat Overview and Summary

The dispute before Thornton J concerned the removal of caveats lodged by the respondent wife on four properties. The applicant husband sought the removal of these caveats, while the wife had filed a response seeking various orders, including the dismissal of the husband's application.

The primary legal issue before the court was whether the wife had a sufficient caveatable interest in the properties to justify the continued presence of the caveats. This required an examination of the wife's asserted rights and the legal basis for lodging a caveat under the relevant property law legislation.

Thornton J reasoned that the wife had failed to demonstrate a present or future proprietary interest in the properties that would support her claim to lodge caveats. The court found that the wife's claims were not of a nature that could be protected by a caveat, and therefore, the caveats were improperly lodged. Consequently, the court ordered the wife to take all necessary steps to remove the caveats from the titles of the properties located at 1 Street, Suburb A, Victoria; 2 Street, Suburb A, Victoria; 3 Street, Suburb A, Victoria; and C Street, Suburb D, Queensland. The wife was also ordered to bear the costs associated with the removal and was restrained from lodging any further caveats on these properties. Certain other applications were adjourned for management.

Orders

Orders of the court

The respondent wife shall forthwith take all necessary steps to cause the relevant Registrar of Titles to remove the caveats from the titles of the following properties:

(a) 1 Street, Suburb A, Victoria;

(b) 2 Street, Suburb A, Victoria;

(d) C Street, Suburb D, Queensland.

Paragraph 1 of the wife’s Response to an Application in a Case filed 13 February 2015 is dismissed.

The wife shall meet any necessary costs associated with the removal of the caveats.

Until further order, the respondent wife be restrained from lodging any further caveats on the titles pertaining to the properties referred to in paragraph 1 of these orders.

The applications sought in paragraph 3 of the husband’s Application in a Case and paragraphs 2 to 13 of the wife’s Response to the husband’s Application in a Case be adjourned for management as to listing by the Registrar docketed with the management of the file.

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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