Supreme Court New South Wales Medium Neutral Citation: Goldwin v Morson [2022] NSWSC 410 Hearing dates: 7 April 2022 Date of orders: 7 April 2022 Decision date: 07 April 2022 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Proceedings dismissed with costs Catchwords: CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Application to extend caveat over former matrimonial home when proceedings on foot in Federal Circuit and Family Court of Australia Division 2 Cases Cited: Song v Shi [2011] NSWSC 1207 Category: Procedural rulings Parties: Nella Goldwin (Plaintiff) Peter Francis Morson (Defendant) Representation: Counsel: E. Rusiti (Defendant) Solicitors: Parker Law (Plaintiff) File Number(s): 2022/70562 Publication restriction: No EX TEMPORE Judgment (REVISED) Summary 1. The plaintiff (Ms Goldwin) and the defendant (Mr Morson) are currently locked in a matrimonial dispute. That dispute is being litigated in the Federal Circuit and Family Court of Australia Division 2 (the Family Court). 2. By summons filed in Court on 11 March 2022, Ms Goldwin seeks interlocutory relief including an order that the operation of a caveat over the former matrimonial home at XX XXXX Street, Paddington (the Property) be extended until further order, and for final relief declaring that she has an equitable interest in the Property. Mr Morson is the sole registered proprietor of the Property, but Ms Goldwin is currently residing there. 3. By notice of motion filed on 17 March 2022, the defendant (Mr Morson) seeks an order pursuant to UCPR Part 13 rule 13.4 that these proceedings be summarily dismissed as an abuse of process. 4. Ms Goldwin represented herself today. Mr Morson was represented by Ms E Rusiti of Counsel. 5. What is entirely clear amidst the conflicting evidence and submissions is that the proper place for the resolution of their disputes, and in particular the determination of the question of the extent to which Ms Goldwin may have an interest in the Property, is in the Family Court. 6. Last Monday, the Family Court, of its own motion, made orders including: "…7. Pursuant to s 114 of the Family Law Act 1975 (Cth), and until further order of the Court, the Applicant Husband is hereby restrained by injunction from refinancing any real property owned by him, or from using any interest in any real property to pay his debt to the Australian Taxation Office. 8. A copy of these Orders may be provided to any Court dealing with the property of the parties. AND THE COURT NOTES THAT: A. The wife contends that the husband's tax debt is his sole liability which should be allocated solely to him on a final basis, and that it should not be paid from matrimonial assets held in his name. B. The husband contends that his tax debt should be paid now by accessing equity in real property held in his sole name. C. The injunction is made of the Court's own motion to protect and preserve the property of the parties to the marriage, which property is the subject matter of these proceedings, from premature distribution by payment to the taxation office until such time as this Court can consider the dispute and make the appropriate orders on an interim or final basis. D. The husband may file an Application in a Proceeding for interim property distribution orders to refinance real property in his name and to use such funds to pay his tax debt, if he contends that the matter should be dealt with prior to a final hearing. …" 1. Those orders are significant because they in large part, but not completely, prevent Mr Morson from dealing with the Property pending the determination of the litigation in the Family Court. 2. Furthermore, Mr Morson has today proffered an undertaking though his counsel to the Court not to disturb Ms Goldwin's occupation of the Property until further order of the Family Court. The Court will accept that undertaking. 3. Ms Goldwin has filed a great deal of evidence that she says demonstrates contributions she has made to the Property. However, in terms of demonstrating a caveatable interest, at least at an interlocutory level, the highest her evidence seems to rise is an uncorroborated assertion by her that she contributed $50,000 towards the deposit for the Property, which was purchased for in excess of $1.5 million. Mr Morson denies that Ms Goldwin made any such contribution. 4. If I were approaching the matter solely as a question of whether or not Ms Goldwin's caveat should be extended, and therefore applying ordinary injunctive principles, I would have taken the view that her evidence, her own word, provides a weak basis for establishing that there is a serious question to be tried as to whether she has an interest in the Property. 5. Recognising a weak case at that stage of the enquiry, the question of the balance of convenience would have become important. Without more, it might have been said that the balance of convenience favoured the extension of the caveat. However, the balance of convenience has been swayed decisively against the continuation of the caveat by reason of the orders that were made on Monday in the Family Court and the undertaking that has been proffered today (see [6] and [7] above). 6. Turning to the question of the summary dismissal of the proceedings. Ms Rusiti primarily based her submissions on the proposition that these proceedings are an abuse of process. 7. Given that the Family Court, a specialist court, is seized of the dispute between the parties and has jurisdiction to resolve all relevant matters between them, I accept that parallel proceedings in this Court ultimately directed towards establishing the extent, if any, of Ms Goldwin's interest in the Property are an abuse of process. 8. Ms Rusiti drew the Court's attention to the decision of Brereton J, as his Honour then was, in Song v Shi [2011] NSWSC 1207 in which his Honour said: "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." 1. I respectfully adopt his Honour's reasons. They are on all fours with the circumstances of this case. The proceedings will be dismissed. 2. Summary dismissal is ultimately in the discretion of the Court. I am also fortified in the appropriateness of making the order to dismiss these proceedings by the undertaking that has been proffered by Mr Morson to the Court. 3. The combined effect of the current injunction in the Family Court and Mr Morson's undertaking to this Court is sufficient to preserve the status quo and protect Ms Goldwin's interests until all questions concerning the parties' rights, including their respective interests, such as they may be, in the Property, are resolved in the Family Court. That is clearly the proper venue for the dispute. 4. Ms Rusiti applied for her client's costs of the proceedings. Costs follow the event. Ms Goldwin was not able to offer any reason why that should not be so, and the Court will order her to pay Mr Morson's costs of these proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 April 2022