Song v Shi [2011] NSWSC 1207

Song v Shi [2011] NSWSC 1207

Because the caveat application concerned matrimonial property and Family Court property adjustment proceedings under ss 78 and 79 of the Family Law Act 1975 were already on foot and listed for hearing, with injunctive relief already granted there, it was inappropriate for parallel Supreme Court proceedings to impose a more extensive restraint by caveat; any further restraint should be sought in the Family Court.

Jurisdiction
Australia
Judgment Date
28 September 2011
Procedural Posture
Application for Extension of Operation of Caveat, Leave to Amend or Lodge Further Caveat, and Transfer to the Family Court of Australia / Notice of Motion Filed 20 September 2011; Ex Tempore Judgment in the Equity Division Duty List
Outcome
Motion dismissed with costs
Legal Topics
['caveats' 'matrimonial Cause' 'property Adjustment Proceedings' 'cross Vesting' 'transfer of Proceedings' 'injunctive Relief']
['real Property' 'family Law' 'civil Procedure'] ['caveats' 'matrimonial Cause' 'property Adjustment Proceedings' 'cross Vesting' 'transfer of Proceedings' 'injunctive Relief']

Case Brief

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Procedural Posture

Application for Extension of Operation of Caveat, Leave to Amend or Lodge Further Caveat, and Transfer to the Family Court of Australia / Notice of Motion Filed 20 September 2011; Ex Tempore Judgment in the Equity Division Duty List

Legal Issues

  1. 1 ['Whether proceedings for extension of a caveat by one party to a marriage concerning property of one or other of them are proceedings with respect to property of the parties to the marriage and a matrimonial cause under the Family Law Act 1975 (Cth).' 'Whether it was appropriate for the Supreme Court to grant relief extending or facilitating a caveat where Family Court property adjustment proceedings were already on foot and listed for hearing.' 'Whether there was utility in transferring the proceedings to the Family Court of Australia where no final relief was sought.']

Ratio Decidendi

Because the caveat application concerned matrimonial property and Family Court property adjustment proceedings under ss 78 and 79 of the Family Law Act 1975 were already on foot and listed for hearing, with injunctive relief already granted there, it was inappropriate for parallel Supreme Court proceedings to impose a more extensive restraint by caveat; any further restraint should be sought in the Family Court.

Court Disposition

Motion dismissed with costs

Orders

  • ['The motion be dismissed, with costs.']