Smith v Smith [2016] NSWSC 1287

Smith v Smith [2016] NSWSC 1287

There is a serious question to be tried concerning the wife's caveatable interest in the property, and the balance of convenience favours the extension of the caveat pending resolution of family law proceedings.

Parties
Plaintiff: Sharee Smith; Defendant: Rodney William Smith
Jurisdiction
Australia
Judgment Date
09 September 2016
Procedural Posture
Proceedings to Extend Caveat and Related Relief / Ex Tempore Judgment Following Urgent Application
Outcome
Caveat extended; proceedings transferred to the Family Court of Australia.
Legal Topics
Caveats, Matrimonial Property, Extension of Caveat, Transfer of Proceedings
Equity Real Property Family Law Caveats Matrimonial Property Extension of Caveat Transfer of Proceedings

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Parties

Sharee Smith

Plaintiff

Rodney William Smith

Defendant

Procedural Posture

Proceedings to Extend Caveat and Related Relief / Ex Tempore Judgment Following Urgent Application

Legal Issues

  1. 1 Whether the caveat lodged by the wife over the matrimonial home should be extended under s 74K Real Property Act 1900 (NSW)
  2. 2 Whether there is a serious question to be tried that the wife has a caveatable interest
  3. 3 Balance of convenience regarding extension of the caveat

Ratio Decidendi

There is a serious question to be tried concerning the wife's caveatable interest in the property, and the balance of convenience favours the extension of the caveat pending resolution of family law proceedings.

Court Disposition

Caveat extended; proceedings transferred to the Family Court of Australia.

Orders

  • Upon the plaintiff giving to the Court the usual undertaking as to damages, order pursuant to s 74K of the Real Property Act 1900 (NSW) extending caveat number AK 644358 until further order.
  • Proceedings transferred to the Family Court of Australia.