Toh & Anor v Wu & Anor  VSC 36 (12 February 2018) Daly AsJ.
The chronology was –
2017 First defendant commences family law proceeding in Federal Magistrates Court
against her husband. The plaintiffs in the subsequently issued Supreme
Court proceeding are her in-laws and are registered proprietors of a
property. Application (not yet determined) to join plaintiffs as parties
to the family law proceeding and to restrain sale of property or have proceeds
of sale retained in trust pending determination of
28 November 2017 Caveat lodged by first defendant over the property, grounds of claim being “court order under the Family Law Act 1975”.
15 January 2018 Plaintiffs notify intention to issue and issue s. 90(3) application.
16 January 2018 Service of application and material in support.
18 January 2018 Hearing at which caveat ordered to be removed. Order that net proceeds of sale be held in trust. Costs reserved.
29 January 2018 Settlement of sale of property due.
Daly AsJ ordered that each party should bear their own costs of the s. 90(3) application. Her Honour reasoned –
- In removing the caveat the court had not considered whether there was a serious question to be tried. Although the interest claimed in the caveat was not prima facie a recognized proprietary interest the underlying documents tolerably revealed claims pursuant to a resulting or constructive trust, and the suddenness of the application severely compromised the caveator’s ability to respond. However, the balance of convenience overwhelmingly favoured removal because of settlement and finance difficulties. The removal was also influenced by the fact that, having regard to the existing Federal Magistrates’ Court proceedings, it was in the parties’ interests for property interests to be determined in one proceeding, not fragmented across jurisdictions.
- Special circumstances warranted the plaintiffs not receiving their costs, namely their failure to warn the caveator of the intended application. While it would often be unnecessary or impractical to warn of an application, the application here was made some 7 weeks after lodgement of the caveat and only 7 business days before settlement of the sale was due. The caveator was ambushed.
- The caveator’s alleged impecuniosity was irrelevant to the costs decision.