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WATERS & DURRANT

WATERS & DURRANT

Case [2015] FCCA 2419 4 August 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

WATERS & DURRANT

[2015] FCCA 2419

Catchwords:
FAMILY LAW – Property – caveat against title – consideration of the jurisdiction of the Federal Circuit Court of Australia – exercise of accrued jurisdiction.

Legislation:

Family Law Act 1975, Part VIIIAA, Part VIIIAB

Transfer of Land Act 1958 (VIC)
Fair Work Act 2009
Corporations Act 2001
Federal Circuit Court of Australia Act 1999, ss.14, 18
Federal Circuit Court Rules 2001, r.1101

Valceski v Valceski [2007] NSWSC 440
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR
Wakim; Ex Parte McNally and Ors (1999) 163 ALR 270
Warby & Warby [2002] FLC 93-091
Bishop & Bishop (2003) FLC 93-144
Correy & Correy & Ors [2014] FCCA 1939
Scobie & Dudley & Anor [2014] FCCA 816
Dobbie & Bolden [2014] FCCA 1911
Talbot & Talbot [2014] FamCA 128
D & D [2009] FMCAfam 1444
Fencott v Muller (1983) 152 CLR 570
Stack v Coast Securities (No.9)Pty Ltd (1983) 154 CLR 261
Prince & Prince (1984) FLC 91-501
Smith & Smith (No.3) (1986) FLC 91-732
Surfers Paradise Coaches (Qld) Proprietary Limited v Tsu Chan Lin [2007] NSWSC 475
Chan v Cresdon (1989) 168 CLR 242
Dunecar Proprietary Limited (in liq) v Colbron [2001] NSWSC 1181
Marinkovic v Pat McGrath Engineering Pty Limited [2004] NSWSC 571
Bellissimo v JCL Investments Pty Ltd [2009] NSWSC 1260

Applicant:

MR WATERS

Respondent:

MS DURRANT

File Number:

AYC 310 of 2014

Judgment of:

Judge Harman

Hearing date:

4 August 2015

Date of Last Submission:

4 August 2015

Delivered at:

Albury

Delivered on:

4 August 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Ms Southey

Solicitors for the Respondent:

Loretta Terrill Family Lawyer

ORDERS

I declare that I am satisfied that the Federal Circuit Court of Australia is sufficiently vested with accrued jurisdiction and that it is appropriate for that jurisdiction to be exercised so as to deal with, hear and determine any claim by the parties jointly or severally, under the Transfer of Land Act 1958 (VIC) and as might deal with or address the caveat recorded against title of their property recorded by (omitted) Pty Ltd.
The matter is adjourned for further mention and directions to 1 October 2015 at 9:30am.
Within 14 days Ms Durrant shall file and serve upon each of Mr Waters and the solicitors for (omitted) Pty Ltd an Application in a Case setting out the precise Orders which she seeks together with an Affidavit in support thereof, with respect to:
(a)The manner in which she and Mr Waters hold title to the property Property L, in the State of Victoria being all that parcel contained in certificate of title Volume (omitted) Folio (omitted);
(b)The caveat recorded against title of the above property by (omitted) Pty Ltd and claiming an estate in fee simple in that property as a consequence of the deed of guarantee and indemnity entered into between (omitted) Pty Ltd and Mr Waters;
(c)Joinder of…

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 WATERS & DURRANT

Details

AGLC: Waters and Durrant [2015] FCCA 2419
Case: [2015] FCCA 2419
Decision Date: 4 August 2015

CaseChat Overview and Summary

The Federal Circuit Court of Australia, in a decision by Judge Harman, considered a dispute involving Mr Waters and Ms Durrant concerning a property in Victoria. The central issue revolved around a caveat lodged against the property's title by (omitted) Pty Ltd, which claimed an estate in fee simple arising from a deed of guarantee and indemnity entered into between the company and Mr Waters.

The court was required to determine whether it possessed sufficient accrued jurisdiction to hear and determine claims relating to the property under the *Transfer of Land Act 1958* (Vic), and if so, whether it was appropriate to exercise that jurisdiction. Furthermore, the court needed to address the lodgement of the caveat and the potential joinder of (omitted) Pty Ltd as a party to the proceedings, particularly in relation to relief sought under the *Transfer of Land Act 1958* (Vic) and Part VIIIAA of the *Family Law Act 1975*.

Judge Harman was satisfied that the Federal Circuit Court was vested with accrued jurisdiction and that it was appropriate to exercise it to deal with the claims of the parties concerning the property and the caveat. The court reasoned that the accrued jurisdiction extended to matters arising under state legislation when they were so connected with a federal claim that they formed part of the same controversy. The court adjourned the matter for further mention and directions, ordering Ms Durrant to file and serve an Application in a Case within 14 days, detailing the precise orders sought regarding the title to the property, the caveat, and the joinder of (omitted) Pty Ltd. The court also directed that copies of the orders and reasons for judgment be provided to (omitted) Pty Ltd and the Registrar of Titles Victoria. Costs of the proceedings were reserved.

Orders

Orders of the court

I declare that I am satisfied that the Federal Circuit Court of Australia is sufficiently vested with accrued jurisdiction and that it is appropriate for that jurisdiction to be exercised so as to deal with, hear and determine any claim by the parties jointly or severally, under the Transfer of Land Act 1958 (VIC) and as might deal with or address the caveat recorded against title of their property recorded by (omitted) Pty Ltd.

The matter is adjourned for further mention and directions to 1 October 2015 at 9:30am.

Within 14 days Ms Durrant shall file and serve upon each of Mr Waters and the solicitors for (omitted) Pty Ltd an Application in a Case setting out the precise Orders which she seeks together with an Affidavit in support thereof, with respect to:

(a) The manner in which she and Mr Waters hold title to the property Property L, in the State of Victoria being all that parcel contained in certificate of title Volume (omitted) Folio (omitted);

(b) The caveat recorded against title of the above property by (omitted) Pty Ltd and claiming an estate in fee simple in that property as a consequence of the deed of guarantee and indemnity entered into between (omitted) Pty Ltd and Mr Waters;

(c) Joinder of (omitted) Pty Ltd as a party to the proceedings as regards any plea for relief under the Transfer of Land Act 1958 (VIC) and/or Part VIIIAA of the Family Law Act 1975;

(d) The solicitors for Ms Durrant shall, in addition to service of the above Application in a Case and Affidavit, provide to (omitted) Pty Ltd or their attorneys a copy of these Orders and reasons for Judgment delivered today (upon them becoming available);

(e) The solicitors for Ms Durrant shall be at liberty to provide a copy of these Orders, reasons for Judgment (upon them becoming available) together with any Application in a Case and Affidavit filed as directed above to the Registrar of Titles Victoria.

Reserve the costs of both parties with respect to today’s proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Waters and Durrant [2015] FCCA 2419

Most Recent Citation

Yu v Wang [2021] NSWSC 1280

Cases Citing This Decision

Yu v Wang [2021] NSWSC 1280
Citation 1 (Para 16)

…C 440) as well as authorities within the Division 2 Court confirming the existence of its own accrued jurisdiction (see for example, Waters v Durrant [2015] FCCA 2419.) There is no doubt that the Division 2 Court is conferred with an associated jurisdiction (see Federal Circuit and Family Court of Australia Act 202…
Fje20 v Minister for Home Affairs [2021] FCCA 1900
Citation 2 (Para 27)

…The accrued jurisdiction of this Court was affirmed upon a survey of the relevant authorities in Waters & Durrant [20] at [16]. [20] [2015] FCCA 2419…
Siebel and Siebel and Anor [2019] FCCA 3367
Citation 3 (Para 3)

…lls are apposite here. Moreover, this Court has previously exercised jurisdiction under section 90(3) of the TLA: see for example, Waters v Durrant [2015] FCCA 2419.…

See all citing cases →

Cases Cited

DOBBIE & BOLDEN [2014] FCCA 1911
Citation 1 (Para 4)

…ion to hearing time or all three of these factors. 35. In Dobbie & Bolden [2014] FCCA 1911, in an application for division of chattels and spousal maintenance, the Applicant De Facto Wife also sought payment for alleged unpaid annual leave and salary pursuant to the Fair Work Act 2009 (Cth). 36. Burchardt J indicat…
Correy and Correy and Ors [2014] FCCA 1939
Citation 2 (Para 4)

…is very important and a necessary part of the Court’s power.” 30. In Correy & Correy & Ors [2014] FCCA 1939, Turner J transferred the proceedings to the Family Court of Australia at Melbourne. In that case, the Wife asserted that the Husband improperly drew down $354,000 from the mortgage secured over the former m…
Scobie and Dudley and Anor [2014] FCCA 816
Citation 3 (Para 10)

…Similarly, in Scobie & Dudley & Anor [2014] FCCA 816, Judge Kemp, on the same basis, accepted the existence of an accrued jurisdiction in the Federal Circuit Court of Australia and again, for reasons relating to the complexity of the proceedings, and particularly noting that the jurisdiction which would be exercis…
TALBOT & TALBOT [2014] FamCA 128
Citation 4 (Para 4)

…cant De Facto Wife the annual leave claimed. 37. In Talbot & Talbot [2014] FamCA 128, the Husband sought various orders under the Corporations Act 2001 (Cth). The question in that matter was whether the Federal Circuit Court of Australia has jurisdiction to determine the dispute under the Corporations Act. 38. Benj…
Piroshenko v Grojsman [2010] VSC 240
Citation 5 (Para 4)

…t in skeletal form at paragraphs 19 to 43 of her Counsel’s Case Outline document, which paragraphs I incorporate herein: S90(3) of the Act 19. In Piroshenko v Grojsman (2010) VLR 489, Warren CJ opined as follows: “Caveats under the Torrens system are treated by the courts as analogous to applications for interlocutory injuncti…
Bellissimo v JCL Investments Pty Ltd [2009] NSWSC 1260
Citation 6 (Para 13)

…In New South Wales jurisprudence and assuming its equivalency in Victoria, the Supreme Court in Bellissimo v JCL Investments Pty Ltd [2009] NSWSC 1260 found that a caveatable interest comprising an interest in land, an estate in fee simple, can be created by a collateral agreement within a document otherwise not reg…
Valceski v Valceski [2007] NSWSC 440
Citation 7 (Para 6)

…As is expressed by Brereton J in Valceski v Valceski [2007] NSWSC 440: Whilst there may be a discretion to decline to exercise accrued jurisdiction, it will be an exceptional case in which that discretion can properly be exercised so that the whole of a justiciable controversy is not resolved in the one Court.…
Surfers Paradise Coaches (Qld) Pty Ltd v Tsu Chan Lin [2007] NSWSC 475
Citation 8 (Para 11)

…A contractual right might, consistent with Surfers Paradise Coaches (Qld) Proprietary Limited v Tsu Chan Lin [2007] NSWSC 475, create a caveatable interest. It would be dependent upon the terms and conditions of the agreement. So much was addressed by the High Court in Chan v Cresdon (1989) 168 CLR 242, wherein the…
Marinkovic v Pat McGrath Engineering Pty Ltd [2004] NSWSC 571
Citation 9 (Para 12)

…number of decisions, including Dunecar Proprietary Limited (in liq) & Colbron [2001] NSWSC 1181 and Marinkovic v Pat McGrath Engineering Pty Limited [2004] NSWSC 571 to name but two.…
Dunecar Pty Ltd (in liq) v Colbron [2001] NSWSC 1181
Citation 10 (Para 12)

…The interpretation of such agreements is addressed in a number of decisions, including Dunecar Proprietary Limited (in liq) & Colbron [2001] NSWSC 1181 and Marinkovic v Pat McGrath Engineering Pty Limited [2004] NSWSC 571 to name but two.…
Re Wakim; Ex parte McNally [1999] HCA 27
Citation 11 (Para 7)

…ederal Courts with accrued jurisdiction by Federal Courts is accepted. Some question had arisen as a consequence of Wakim; Ex Parte McNally and Ors (1999) 163 ALR 270, but that would appear to be resolved in favour of the exercise of accrued jurisdiction, at least as regards the Family Court of Australia, by subseque…
Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22
Citation 12 (Para 4)

…erty in question in accordance with their normal proprietary rights.” 20. The High Court of Australia said in Leros Pty Ltd v Terar Pty Ltd (1992) 174 CLR 407 at 422 as follows: “It has been said that the purpose of requiring the caveator to “specify” the estate or interest claimed is to enable the registered proprie…
Fencott v Muller [1983] HCA 12
Citation 13

…s [2014] FCCA 1939 Scobie & Dudley & Anor [2014] FCCA 816 Dobbie & Bolden [2014] FCCA 1911 Talbot & Talbot [2014] FamCA 128 D & D [2009] FMCAfam 1444 Fencott v Muller (1983) 152 CLR 570 Stack v Coast Securities (No.9) Pty Ltd (1983) 154 CLR 261 Prince & Prince (1984) FLC 91-501 Smith & Smith (No.3) (1986) FLC 91-732 Surfe…
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7
Citation 14 (Para 4)

…the caveat has been raised by the Honourable Court. 27. In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, Barwick CJ explained as follows: “It is settled doctrine in Australia that when a Court which can exercise Federal jurisdiction has its jurisdiction attracted in relation to a matter,…
Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36
Citation 15 (Para 2)

…ris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR, Fencott & Muller (1983) 152 CLR 570, and Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 in the mid-1980s. 7. Whether the Family Court itself had an accrued jurisdiction is a matter that is somewhat more controversial and the argument as to wheth…
Chan v Cresdon Pty Ltd [1989] HCA 63
Citation 16 (Para 11)

…caveatable interest. It would be dependent upon the terms and conditions of the agreement. So much was addressed by the High Court in Chan v Cresdon (1989) 168 CLR 242, wherein their Honours forming the plurality – Mason C.J., Brennan, Deane and McHugh JJ – opined at paragraph 257: Though the unregistered instrument…
D & D [2009] FMCAFAM 1444
Citation 17 (Para 2)

…I am ultimately, however, indebted to my former colleague, Judge Lindsay, in his discussion of the aetiology of the jurisdiction in D & D [2009] FMCAfam 1444, and I incorporate, from that decision, paragraphs 6 to 20 of that decision: 6. The wife contends that the court does have such a jurisdiction, in that it arises…

Legislation Cited

Federal Circuit Court of Australia Act 1999 (Cth) 14, 18
3 mentions (from Para 4)
Federal Circuit Court Rules 2001 (Cth) 1101
2 mentions (from Para 7)
Constitution of Australia (Cth)
1 mention (from Para 2)
Corporations Act 2001 (Cth)
1 mention (from Para 4)
Fair Work Act 2009 (Cth)
1 mention (from Para 4)
Family Law Act 1975 (Cth)
1 mention (from Para 4)
Transfer of Land Act 1958 (Vic)
1 mention (from Para 1)