Gould v Purtle [2014] NSWSC 493

Gould v Purtle [2014] NSWSC 493

The Court may, in the absence of the Plaintiff, make further implementation orders ancillary to family provision orders previously made by consent and entered, including compelling the Plaintiff to execute a transfer, and, on default, authorising the Registrar to sign for her, because such orders are ancillary and necessary to give effect to the original orders. Non-compliance and likely futility justify anticipatory relief as per s 94 of the Civil Procedure Act. The payment obligation can be secured by an equitable charge over the property as ancillary to performance of the court's orders.

Jurisdiction
Australia
Judgment Date
23 April 2014
Procedural Posture
Notice of Motion in Previous Family Provision Proceeding / Post Final Orders, Enforcement/ancillary Orders
Outcome
Ancillary enforcement/implementation orders granted in relation to transfer and security for payment; costs awarded to Defendant.
Legal Topics
['family Provision Orders' 'enforcement of Court Orders' 'non Compliance With Consent Orders' 'ancillary and Implementation Orders' 'ex Parte Proceedings']
['succession' 'civil Procedure' 'equity'] ['family Provision Orders' 'enforcement of Court Orders' 'non Compliance With Consent Orders' 'ancillary and Implementation Orders' 'ex Parte Proceedings']

Case Brief

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Procedural Posture

Notice of Motion in Previous Family Provision Proceeding / Post Final Orders, Enforcement/ancillary Orders

Legal Issues

  1. 1 ['Whether the Court can make additional or ancillary orders to implement a family provision order previously made by consent and entered in the court record' 'Whether the Plaintiff should be ordered to execute the property transfer and, on refusal, whether the Registrar may execute the transfer on her behalf' 'Whether the Defendant may seek such relief by notice of motion rather than commencing new proceedings' "Whether an equitable charge should secure the Plaintiff's payment obligation under the orders"]

Ratio Decidendi

The Court may, in the absence of the Plaintiff, make further implementation orders ancillary to family provision orders previously made by consent and entered, including compelling the Plaintiff to execute a transfer, and, on default, authorising the Registrar to sign for her, because such orders are ancillary and necessary to give effect to the original orders. Non-compliance and likely futility justify anticipatory relief as per s 94 of the Civil Procedure Act. The payment obligation can be secured by an equitable charge over the property as ancillary to performance of the court's orders.

Court Disposition

Ancillary enforcement/implementation orders granted in relation to transfer and security for payment; costs awarded to Defendant.

Orders

  • ["Plaintiff to attend and execute the property transfer at specified time and place; or may comply in advance by returning duly executed transfer to Defendant's solicitor." 'Documents to be retained by Defendant/solicitor for stamping and lodgement.' 'Defendant to pay costs of stamping and registering the transfer.'...