Voichin and Bonner and Anor

[2012] FamCA 457

FAMILY COURT OF AUSTRALIA

VOICHIN & BONNER AND ANOR [2012] FamCA 457

FAMILY LAW – PRACTICE AND PROCEDURE – Withdrawal of caveat

Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth)

Ravasini (1983) FLC 91-312; 8 Fam LR 903

APPLICANT: Mr Voichin (Trustee in Bankruptcy)

FIRST RESPONDENT: Mr Bonner

SECOND RESPONDENT: Ms Bonner

FILE NUMBER: MLC 1166 of 2010

DATE DELIVERED: 5 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kourtis

SOLICITOR FOR THE APPLICANT: McKean and Park

THE RESPONDENT: No appearance

THE 2^ND RESPONDENT: No appearance

Orders

1. That pursuant to s 106A of the Family Law Act 1975 (Cth), Mr Voichin sign the Withdrawal of Caveat No … lodged on 5 August 2010 by Mr Bonner on Certificate of Title Volume … Folio … and such withdrawal of caveat be signed in the name of Mr Bonner.

2. That the application filed 5 June 2012 is otherwise dismissed.

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

FILE NUMBER: MLC 1166 of 2010

Mr Voichin (Trustee in Bankruptcy)

Applicant

and

Mr Bonner

First Respondent

and

Ms Bonner

Second Respondent

REASONS FOR JUDGMENT

1. Final orders were made by the Court on 9 November 2011.  There is a specific provision in that order that the trustee in bankruptcy who was a party to the proceedings, withdraw a caveat lodged by the husband over the property that was described by them as the Town C property.  The husband had no right of standing by virtue of his bankruptcy and Mr Voichin as the trustee, consented to the order.  The Registrar of Titles has declined to accept a withdrawal of a caveat signed by the bankruptcy trustee.  That seems to me to be inconsistent with the provisions of the Bankruptcy Act 1966 (Cth).

2. Leaving that issue aside, s 106A of the Family Law Act 1975 (Cth) provides that in circumstances where an order is made for an act to be done which requires the execution of a deed or instrument and a person has refused or neglected to comply with a direction or, for any other reason, the Court considers it necessary, the Court may appoint someone to execute the deed or instrument in the name of the person to whom the direction was given. It seems a logical but almost absurd situation where I am ordering in November 2011 the trustee to do something but now ordering him to do something in a different way but it is the sensible solution to the problem.

3. I am not altering the orders of 9 November substantively but rather using the machinery provisions, as the Full Court described in Ravasini (1983) FLC 91-312; 8 Fam LR 903. This should solve the technical problem which seems to have been raised by the Registrar of Titles.

4. And I will otherwise dismiss the application of 5 June 2012.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 June 2012.

Associate: 

Date:  18 June 2012