In the recent case of Shuran & Fang (No 6) [2024] the Court had to determine whether the wife had to remove Caveats that she had lodged over various properties owned by companies controlled by the husband.
It is telling that the judgment of the Court opens with the line “The sorry history of the proceedings in this Court reads like a 21st century version of Charles Dickens’ Bleak House.”
Final Orders had been made in 2020 – following initial Orders in 2016 – and the wife had filed again in 2023 seeking further Final Orders be made; there had also been two proceedings between the parties in the Supreme Court of Victoria which were transferred to the Family Courts under the ‘cross-vesting’ principles.
In these proceedings the husband sought that certain Caveats lodged by the wife be removed so as to enable him to develop the land. The wife’s position was that she would remove the Caveats if she was provided with “sufficient security” – in the form of an injunction prohibiting the husband from dealing with the land other than encumbering it for financing purposes for the development of that land. The husband offered an undertaking to the Court that he would not encumber the land without first giving the wife 21 days’ notice.
The Court began by noting that “It is well settled that a claim under s 79 of the Act does not, in and of itself, give rise to a caveatable interest in land” and “She has no right to security, per se”.
Ultimately the Court found that the wife had to remove the Caveats – at her own cost; with the husband being restrained by injunction from encumbering the land beyond the financing proposed for the development of the land. The Court ordered an undertaking by the wife to compensate the husband for any loss of damage suffered as a result of the injunctions on the husband.
The wife had sought a further Order that she be provided with accounts before the husband could spend the financed money, but the Court declined to make that Order on the basis that the husband’s duty of disclosure to provide receipts for spending of the financed money continued.
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