W and D

[2003] FMCAfam 391

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & D [2003] FMCAfam 391

PRACTICE & PROCEDURE – Jurisdiction – injunctive relief – removal of caveat – whether the Federal Magistrates Court has exclusive jurisdiction to deal with application for a removal of a caveat where an equitable interest is claimed and whether such a matter should be dealt with on an interim basis – matrimonial causes – Court has exclusive jurisdiction.

Family Law Act 1975 (Cth), ss.4(1), 4(1)(ca), 78, 79

J and H Just (Holdings) v Bank of New South Wales (1971) 125 CLR 546
Lansell v Lansell [1964] 110 CLR 353
Sabri & Brien & Sabri & ANZ Banking Group Ltd (1997) FLC 92-732
Renouf v Renouf (1988) FLC 91-909
Hayes v O'Sullivan & Anor [2001] WASC 55
Dembitzer v Mills (1980) NSWLR 697
In the Marriage of Stevens (1991) 15 Fam LR 51
Australian Eagle Insurance Co Ltd v Parry (1992) ANZ Conv R 166

Applicant: R L W

Respondent: T T T D

File No: MLM 3070 of 2003

Delivered on: 29 August 2003

Delivered at: Melbourne

Hearing Date: 25 August 2003

Judgment of: Bryant CFM

REPRESENTATION

Counsel for the Applicant: Ms Stavrakakis

Solicitors for the Applicant: Lucas & Marshman

Counsel for the Respondent: Mr Wilson

Solicitors for the Respondent: Rigby Cooke

ORDERS

1. That the Interim Relief sought by the wife in paragraph 2 of her Amended Response filed 20 August 2003 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 3070 of 2003

R L W

Applicant

and

T T T D

Respondent

REASONS FOR JUDGMENT

Introduction

1. The matter before me today for determination involves an issue about the removal of a caveat.  In particular the relief sought is set out in the Amended Response of the wife in these proceedings in which she seeks that the husband, at his expense, forthwith withdraw caveats registered over three properties in which she has an interest.

2. The matter came before me on 25 August in the duty list on a number of issues.  At that time directions were made for the further hearing of the matter by requiring the parties to attend a conciliation conference and by listing the matter for final hearing.

3. Some interlocutory relief was agreed between the parties and by agreement there was an injunction restraining the wife from selling, encumbering, disposing of or in any way dealing with the three properties to which I have referred, namely, 7 C Avenue, N P; 5 C Avenue, N P and 231 F Road, N M.

4. Submissions were made in relation to the issue regarding the caveats and I reserved judgment until this morning.

5. Two questions arise for determination.  First, does this Court or indeed any Court exercising jurisdiction under the Family Law Act 1975 (Cth) ("the Act") have jurisdiction to deal with the application by the wife for removal of the caveats, or is that an application which should be made to the Supreme Court? Secondly, if the Court does have jurisdiction, should that jurisdiction be exercised on an interim basis to require the husband to withdraw the caveats?

Background

1. The parties lived together from 1988 or 1989 and separated in July 2002.  They married in April 1989.  There are three properties, to which I have referred, in which the wife has an interest.  There may be some dispute at the hearing as to the precise nature of that interest as it would appear, at least in relation to one of the properties, the legal interest of the wife does not reflect the interest that she in fact says she has.

2. The husband has claimed an interest in the properties.  He says in an affidavit which was sworn by him on 22 August in relation to this application, that he has made what I can describe as direct contributions to the properties whereby he claims a substantial interest in them and says that the properties were acquired and regarded by the parties as joint property. 

3. The proceedings which are before this Court are proceedings between the parties for property settlement under s.79 of the Act. The evidence of the husband to which I have referred supports, on its face, an argument that he has contributed to the acquisition, conservation and improvement of the properties under s.79 of the Act. It is common ground that in support of his caveats he has claimed an equitable interest in the properties.

Jurisdiction

1. The first question is whether the Court has jurisdiction to deal with the order sought by the wife. Section 4(1)(ca) of the Family Law Act contains the definition of matrimonial cause. That section says:

   "Matrimonial cause means:

   (ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:

   (i)arising out of the marital relationship;

   (ii)in relation to concurrent, pending or completed proceedings between those parties for principal relief; or 

   (iii)in relation to the dissolution or annulment of that marriage or the legal separation of the parties to that marriage."

2. In this case it is contended that the proceedings are proceedings arising out of the marital relationship with respect to settlement of property. 

   
   

   I am not aware whether there are any proceedings for principal relief on foot. 

3. A claim under s.79 of the Act is not a caveatable interest (see Dembitzer v Mills (1980) NSWLR 697 and In the Marriage of Stevens (1991) 15 Fam LR 51; Australian Eagle Insurance Co Ltd v Parry (1992) ANZ Conv R 166).

4. Both parties relied upon the case of Hayes v O'Sullivan & Anor [2001] WASC 55. Roberts-Smith J considered the question of whether the Supreme Court of Western Australia had jurisdiction where the subject matter, namely a property dispute between the parties, was being litigated in a Court exercising jurisdiction under the Family Law Act, in that case the Family Court of Western Australia.

5. He accepted that if the matters before him in relation to the caveat were matters arising under section 4(1)(ca) being proceedings arising out of the marital relationship then a Court exercising jurisdiction under the Family Law Act would have exclusive jurisdiction and prima facie the Supreme Court did not have jurisdiction. However, If the proceedings relate to the removal of a caveat due to defects in the caveat prima facie the Supreme Court has jurisdiction. (see also Renouf v Renouf (1988) FLC 91-909 per Hodgson J).

6. The question which required consideration by Roberts-Smith J was whether the equitable relief which allegedly supported the caveat was relief which could be said to arise out of the marital relationship in relation to the property proceedings. He held that it was. The two heads of relief are different, although it is clearly the case that under s.78 of the Act the Court has the jurisdiction to consider equitable interests.

7. There are other cases in which the Court has held that an equitable interest can co-exist with the inchoate interests which arise under section 79. The decision of Chisholm J in Sabri & Brien & Sabri & ANZ Banking Group Ltd (1997) FLC 92-732 is such a case.

8. Thus where a party relies upon an equitable interest to support the lodging of a caveat such an equitable interest can co-exist with a claim under s.79 of the Act, and form part of the proceedings to be dealt with by a Court exercising jurisdiction under the Family Law Act.

9. That being the case the Court has exclusive jurisdiction arising from section 4(1) of the Family Law Act to deal with the relief sought and an application in the same circumstances cannot be made to the Supreme Court (see Lansell v Lansell [1964] 110 CLR 353).

10. The second question then is whether, as part of the interlocutory relief sought by the wife, the Court should order the husband to withdraw the caveats. The information contained in the affidavit of the husband is not extensive, but as this was an interim application, one would not necessarily expect it to go much further. What he says is that he has made contributions in circumstances in which there was an expectation that the property was to be regarded as joint property and that he has not only the rights I have described under s.79 of the Act, but also equitable rights which entitle him to lodge a caveat to protect his interest in the property.

11. In J and H Just (Holdings) v Bank of New South Wales (1971) 125 CLR 546 Windeyer J said at page 558:

    "The primary purpose of a caveat against dealings is not to give notice to the world of an interest, it is to warn the registrar-general of a claim.  The word "caveat" has long been used in order to describe a notice given to an official not to take some step without giving the caveator the opportunity to oppose it."

12. In this case the husband asserts that the wife has made threats and there are other facts which suggest that she may dispose of an interest in the land to defeat his claim.  He requires that the caveats remain so that the Registrar of Titles has notice of his claim and he can properly be given notice of any attempt to dispose of the property.

13. Although injunctions have been made against the wife personally, they do not bind third parties such as the Registrar of Titles and the caveat does afford a protection to the husband which is not afforded by the injunctive relief which has been consented to by the wife. 

14. In my view therefore the caveats appear to have been lodged to protect an equitable interest claimed by the husband.  I am not satisfied that there is any evidence presented by the wife to support an order that the husband remove them.

15. Accordingly, I propose to dismiss the wife's application for the interim orders sought in paragraph 2 of her Amended Response.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate:  Peter Smith

Date:  12 September 2003