Weddener and Weddener

[2008] FamCA 1136

FAMILY COURT OF AUSTRALIA

WEDDENER & WEDDENER [2008] FamCA 1136

FAMILY LAW – PROPERTY

Family Law Act 1975 (Cth)

APPLICANT: Ms P Weddener

RESPONDENT: Mr Weddener

INTERVENORS: Registrar of Titles,
Ms K Weddener,
Commonwealth Bank

FILE NUMBER: MLC 2989 of 2008

DATE DELIVERED: 10 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Connor

COUNSEL FOR THE

FOURTHNAMED RESPONDENT:

Mr Moffatt

Orders

1. That the amended application in a case filed by the wife on 5 September 2008 be struck out.

2. That there be no orders for costs.

3. That my reasons this day be transcribed and be made available to the parties including the practitioner for the Commonwealth Bank of Australia.

4. That all proceedings be otherwise removed from the list of cases awaiting a hearing.

IT IS NOTED that publication of this judgment under the pseudonym Weddener & Weddener is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2989 of 2008

MS WEDDENER

Applicant

And

MR WEDDENER

Respondent

REASONS FOR JUDGMENT

1. This is a matter that has come to me today in the duty list.  The application was filed by the wife as a result of the settlement of a property dispute between she and her husband. 

2. I am not going to go into any great detail about the facts of the background of the matter save to say that it would appear that the obligation on the husband was to pay to the wife money, and the obligation on the wife was to transfer the property to him.

3. For reasons which no longer matter, the wife handed the transfer over to, as I understand it, the husband's daughter and did not get her money.  That culminated in proceedings being issued and those are the matters before me today.

4. The wife has sought orders against the Registrar of Titles and the Commonwealth Bank.

5. The husband has written a number of letters to the court directed to the registrar, none of which I have read, but I have been told that he sent a bank cheque payable to the solicitors for the wife, and as a result of some very sensible discussions this morning - albeit in the absence of the husband - that cheque has been accepted in part-payment, and I stress again I have been told that it is accepted in part-payment of the moneys due to the wife by the husband.

6. The Commonwealth Bank's interest in the proceedings has been to make the transfer effective so that they can then lodge their mortgage.  To that extent they have no other interest in the proceedings, and raised some issues about whether or not there was a caveatable interest.

7. All of those problems have now evaporated by the wife accepting the cheque in part‑payment and providing to the Commonwealth Bank the withdrawal of caveat.

8. I want to put on the record that I have made the comment that the Commonwealth Bank has taken a very sensible approach for not seeking costs and to that extent I appreciate that from the court's point of view because it assists the parties in getting what is a difficult problem out of the way.

9. For the sake of the record, however, I want to make it very clear to anybody who reads this in the future that the wife has indicated that she has not been paid in full the amount due under her entitlements under the order.  The solicitor is intending to write to the husband to indicate to him that she is not so satisfied and if there is not some resolution of the matter she will issue further proceedings.

10. I am of the very clear understanding that there is no res judicata issue here and the husband would be well advised, if he happens to be reading these reasons, to get some legal advice.

I certify that the preceding Ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 October 2008