Song v Shi [2011] NSWSC 1207 (28 September 2011)

Last Updated: 22 December 2011

Supreme Court New South Wales

Case Title:	Song v Shi
Medium Neutral Citation:	[2011] NSWSC 1207
Hearing Date(s):	Wednesday, 28 September 2011
Decision Date:	28 September 2011
Jurisdiction:	Equity Division - Duty List
Before:	Brereton J
Decision:	Motion dismissed with costs
Catchwords:	REAL PROPERTY - Caveats - husband of fractured marriage seeks order extending operation of caveat - proceedings already on foot in Family Court for property adjustment - proceedings for extension of operation of caveat in regards to property of parties to a marriage are a matrimonial cause within (CTH) Family Law Act s 4 - discussion of law - inappropriate to grant relief sought where parallel proceedings on foot in Family Court.
Legislation Cited:	(CTH) Family Law Act 1975, s 4, s 39, s 78, s 79 (CTH) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) Real Property Act 1901, s 74K, s 74O
Cases Cited:	Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Re Wakim; Ex parte McNally (1999) 198 CLR 511 Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440 Young v Lalic and Another (2006) 197 FLR 27; [2006] NSWSC 18
Texts Cited:
Category:	Principal judgment
Parties:	Zhiliang Song (plaintiff) Yi Min Shi (defendant)
Representation
- Counsel:	Counsel: H Lu (solicitor, plaintiff) Mr J T Johnson (defendant)
- Solicitors:	Solicitors: Luminous Legal (plaintiff) Haworth & Lexon Lawyers (defendant)
File number(s):	2011/155949
Publication Restriction:

JUDGMENT (EX TEMPORE)

1. HIS HONOUR: By summons filed 12 May 2011 the plaintiff (who is also the applicant on the notice of motion presently before the Court) Zhiliang Song seeks an order pursuant to (NSW) Real Property Act 1900, s 74K, extending the operation of a caveat in respect of land at Balgowlah until further order of the Court and, alternatively, leave to lodge a further caveat pursuant to s 74O. No final relief is sought. The defendant (who is the respondent to the motion) is the registered proprietor of the property and the plaintiff's estranged wife.

2. The applicantion has been before the Court on several occasions. On those occasions it has been found that the caveat is defective, but for pragmatic reasons it was extended by order of Bergin CJ until 30 September 2011, when it will otherwise lapse. Applications made by the plaintiff for transfer of the proceedings to the Family Court have also so far been unsuccessful, on the basis that there is no utility in transferring to that Court proceedings merely for the extension of a caveat in which no final relief is claimed and in which the caveat is, in any event, defective.

3. By notice of motion filed on 20 September 2011, the plaintiff now seeks the following orders:

1. That pursuant to s 74O of the Real Property Act 1900, the Plaintiff has leave to amend the caveat with registration number XXXXXXXX currently registered on property known as XX Curban St, Balgowlah Heights ("the land") and has leave to lodge the amended caveat on the land.

2. In the alternative, that pursuant to s 74O of the Real Property Act 1900, the Plaintiff has leave to lodge a further caveat on the land in the form attached in the Plaintiff's affidavit dated 19 September 2011.

3. Upon the granting of the leave pursuant to either paragraph 1 or paragraph 2 of this motion, the caveat is to be extended pending the finalisation of the family court proceedings between the Plaintiff and the Defendant.

4. That pursuant to s 5 of the Jurisdiction of Courts (Cross-Vesting) Act (Cth), these proceedings be transferred to the Family Court of Australia, Sydney Registry.

5. In the alternative, that pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act (NSW), these proceedings be transferred to the Family Court of Australia, Sydney Registry.

4. This is at least the third application to come before me in the last fortnight or so whilst I have been sitting as Duty Judge in which one spouse of a fractured marriage has sought orders in the nature of extension of the operation of caveats against the other spouse, in respect of property of one or other of them. It is important to clarify the legal position in respect of this type of application.

5. (CTH) Family Law Act 1975, s 4 contains, in the definition of "matrimonial cause", proceedings between the parties to a marriage with respect to their property. Section 4(ca) provides that a "matrimonial cause" means:

... 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 the concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or

(iii) in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104...

6. Proceedings for the extension of a caveat by one party to a marriage concerning property of one or other of them, are plainly enough proceedings "with respect to the property of the parties to the marriage".

7. The jurisdiction of the Family Court in respect of matrimonial causes was made exclusive, so that such proceedings could not be instituted in a State Supreme Court, by declarations made pursuant to Family Law Act, s 39. Subsequently, (CTH) Jurisdiction of Courts (Cross-Vesting) Act 1987 had the effect of returning, by way of cross-vested jurisdiction, jurisdiction under the Family Law Act to the Supreme Courts of the States and Territories. The history of legislative reform and amendment and a synopsis of the impact of the cross-vesting legislation is set out in my judgment in Young v Lalic and Another (2006) 197 FLR 27; [2006] NSWSC 18, [32]-[50]. However, the position remains that the Family Court of Australia or the Federal Magistrates' Court are ordinarily the courts in which matrimonial causes should be instituted.

8. It follows that ordinarily applications in connection with matrimonial property, including applications for injunctions restraining one spouse from dealing with that property pending the hearing of matrimonial proceedings, should be brought in the same court in which those proceedings are to be determined, namely, the Family Court or Federal Magistrates' Court.

9. In the present case, there were already on foot proceedings for property adjustment pursuant to the Family Law Act , s 78 and s 79, in the Family Court, and those proceedings have been set down for hearing in October. In those proceedings, the Family Court has granted injunctive relief restraining the defendant - the wife in those proceedings - from dealing with the subject property to a certain extent. In my view, it is quite inappropriate in that context for there to be parallel proceedings in this Court in which, by way of statutory injunction in the form of a caveat, a more extensive restraint is sought. If the plaintiff wishes to have the defendant restrained from dealing with the property, and in the outcome of the hearing in the Family Court, the appropriate place in which to make that application is the Family Court.

10. For those reasons, in my opinion, it is quite inappropriate to consider granting further relief in these proceedings.

11. Furthermore, I doubt that there is any utility in transferring the proceedings, as no final relief is sought in them, and it is not at all clear that a transfer by this Court to the Family Court would confer on the Family Court jurisdiction given to this Court but not to the Family Court. Further, it may well be that the Family Court has accrued jurisdiction to make an order extending the operation of a caveat. The matters arise out of a common substratum of facts, and it seems to me at least very strongly arguable that in those circumstances the Family Court would have accrued jurisdiction to make an order extending the operation of a caveat [see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, 475 (Barwick CJ), 512 (Mason J); Re Wakim; Ex parte McNally (1999) 198 CLR 511, 585-586 (Gummow and Hayne JJ, Gleeson CJ and Gaudron J agreeing); Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 (at [37]-[59])]. But at the very least it can grant injunctions restraining the wife from dealing with the property, if minded to do so, and by mechanism of a request to the Registrar General, notice of those orders can be registered on the title.

12. I order that the motion be dismissed, with costs.

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