Vaughan and Bele (No 2) - [2012] FamCA 605

FAMILY COURT OF AUSTRALIA

VAUGHAN & BELE (NO. 2)

[2012] FamCA 605

FAMILY LAW – DE FACTO PROPERTY – Injunctions.
FAMILY LAW – ORDERS – Order to State Registrar of Titles to produce new duplicate certificate of title – power to make order lies in accrued jurisdiction.
FAMILY LAW – Costs.

Family Law Act 1975 (Cth)
Transfer of Land Act 1958 (Vic)

Ascot Investments Proprietary Limited & Harper [1981] HCA 1; 148 CLR 337
Batey-Elton and Elton [2010] FamCAFC 79
Marshall & Williams [1974] VR 592
MG and MG [2000] FamCA 893
Mullen & De Bry [2006] FamCA 1380
Re Wakim [1999] HCA 27
Valceski & Valceski [2007] FLC 93-312
Yunghanns and Yunghanns (1999) FLC 92-836

APPLICANT:

Mr Vaughan

RESPONDENT:

Ms Bele

FILE NUMBER:

MLC

9056

2009

DATE DELIVERED:

23 July 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

23 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harrisss

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers Pty Ltd

THE RESPONDENT:

In person

Orders

That until further order and pending settlement of the sale of the real property at No 9, MR VAUGHAN have the sole and exclusive use and occupation of the No 9 property.
That until further order, MS BELE, by herself, her employees, servants and agents, be and is hereby restrained by injunction from attending within 100 metres of the No 9 property.
That until further order, MS BELE, by herself, her employees, servants and agents, be and is hereby restrained from injunction from leasing, assigning, transferring, alienating or encumbering the No 9 property.
That until further order, MS BELE, by herself, her employees, servants and agents, be and is hereby restrained by injunction from registering or attempting to register, any interests or caveats on the title to the No 9 property.
That the Registrar of Titles for the State of Victoria, cancel Folio of the Register Volume … Folio ….
That the Registrar of Titles create a new folio of the Register and Certificate of Title for the land in Certificate of Title Volume … Folio ….
The Court declares for the purposes of s 27B(6) of the Transfer of Land Act 1958 (Vic) that MS BELE being the recorded registered proprietor of the said land is the person entitled to delivery of the Certificate of Title to be so created pursuant to these orders but for their purposes, the new folio be delivered to Messrs Mills Oakley Lawyers, Level 6, 530 Collins Street, Melbourne to satisfy the orders of this Court made on 13 December 2011.
That Messrs Mills Oakley Lawyers hold the title issued pursuant to these orders on trust pending the settlement of the sale of the No 9 property and the said lawyers be authorised to hand over the title to the purchasers or their representatives or bankers upon the settlement of the sale.
That a sealed copy of these orders be forthwith served upon the proper officer of the legal department of the Land Titles…

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 Vaughan and Bele (No 2)

Details

AGLC: Vaughan and Bele (No 2) [2012] FamCA 605
Case: [2012] FamCA 605
Decision Date: 23 July 2012

CaseChat Overview and Summary

In *Vaughan and Bele (No 2)*, Cronin J of the Supreme Court of Victoria considered an application concerning the exclusive use and occupation of a property at No 9. The dispute involved Mr Vaughan, the applicant, and Ms Bele, the respondent and registered proprietor of the property. The court was asked to make orders regarding the possession and control of the property pending its sale.

The primary legal issues before the court were whether to grant Mr Vaughan sole and exclusive use and occupation of the No 9 property, and whether to restrain Ms Bele from attending the property or dealing with its title. The court also had to determine the appropriate mechanism for managing the property's title and facilitating its sale, particularly in light of Ms Bele's registered proprietorship.

Cronin J reasoned that it was appropriate to grant Mr Vaughan exclusive use and occupation of the property until its sale. To facilitate this, Ms Bele was restrained from attending within 100 metres of the property and from taking any steps to lease, assign, transfer, alienate, encumber, or register any interests or caveats on the title. The court further ordered the cancellation of the existing folio of the register and the creation of a new one, which would be held by Messrs Mills Oakley Lawyers on trust pending settlement of the sale. This was done to ensure the orderly transfer of title to a purchaser and to satisfy the court's prior orders.

Orders

Orders of the court

1. That until further order and pending settlement of the sale of the real property at No 9, MR VAUGHAN have the sole and exclusive use and occupation of the No 9 property.

2.That until further order, MS BELE, by herself, her employees, servants and agents, be and is hereby restrained by injunction from attending within 100 metres of the No 9 property.

3.That until further order, MS BELE, by herself, her employees, servants and agents, be and is hereby restrained from injunction from leasing, assigning, transferring, alienating or encumbering the No 9 property.

4.That until further order, MS BELE, by herself, her employees, servants and agents, be and is hereby restrained by injunction from registering or attempting to register, any interests or caveats on the title to the No 9 property.

5.That the Registrar of Titles for the State of Victoria, cancel Folio of the Register Volume … Folio ….

6.That the Registrar of Titles create a new folio of the Register and Certificate of Title for the land in Certificate of Title Volume … Folio ….

7.The Court declares for the purposes of s 27B(6) of the Transfer of Land Act 1958 (Vic) that MS BELE being the recorded registered proprietor of the said land is the person entitled to delivery of the Certificate of Title to be so created pursuant to these orders but for their purposes, the new folio be delivered to Messrs Mills Oakley Lawyers, Level 6, 530 Collins Street, Melbourne to satisfy the orders of this Court made on 13 December 2011.

8.That Messrs Mills Oakley Lawyers hold the title issued pursuant to these orders on trust pending the settlement of the sale of the No 9 property and the said lawyers be authorised to hand over the title to the purchasers or their representatives or bankers upon the settlement of the sale.

9.That a sealed copy of these orders be forthwith served upon the proper officer of the legal department of the Land Titles Office of Victoria with a request that the Land Titles Office Victoria give full effect to these orders.

10.That the application filed 18 July 2012 save as to costs is otherwise dismissed.

11.That the respondent MS BELE pay the applicant’s costs by agreement and in default of agreement as assessed by the Registrar using the Schedule to the Family Law Rules 2004.

12.That any costs arising out of the said agreement or assessment be satisfied from the respondent MS BELE’S entitlements from the sale of the No 9 property.

13.That the application in a case filed by MS BELE by leave on 20 July 2012 be determined as follows:

(a) as to paragraphs 2, 4, 5, 6, 11, 12 and 15, those matters are adjourned to the Judicial Duty List at 10.00am on 11 September 2012 for determination; and

(b) as to paragraphs 1, 3, 7, 8, 9, 10, 13, 14, 16 and 18, those matters are otherwise dismissed.

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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