Bowling v Bowling [2010] NSWSC 916

New South Wales Supreme Court

CITATION : Bowling v Bowling [2010] NSWSC 916

HEARING DATE(S) : 13 August 2010 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 13 August 2010

DECISION : Injunction granted restraining defendant from proceeding with his application to severe the joint tenancy.

CATCHWORDS : REAL PROPERTY - Partition of Land - joint tenancy - severance - transfer by the defendant to affect severance - defendant had borrowed moneys granting an equitable mortgage over the land and allowing a caveat to be lodged without knowledge of plaintiff - Goyal v Chandra [2006] NSWSC 239 - (2006) 68 NSWLR 313 at 324 [48] distinguished

LEGISLATION CITED : Family Law Act 1975 (Cth) Property (Relationships) Act 1984

CASES CITED : Goyal v Chandra [2006] NSW SC 239; (2006) 68 NSWLR 313

Judith Dianne Bowling (Plaintiff) PARTIES : Darryl Richard Bowling (First Defendant) Registrar General of New South Wales (Second Defendant)

FILE NUMBER(S) : SC 2010/267244

COUNSEL : M Rollinson (Plaintiff) N J Beaumont (First Defendant)

SOLICITORS : Friend and Co Lawyers (Plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

FRIDAY 13 AUGUST 2010

2010/267244 JUDITH DIANNE BOWLING v DARRYL RICHARD BOWLING & ANOR EX TEMPORE JUDGMENT 1 In her statement of claim, Judith Dianne Bowling, the plaintiff, sought interlocutory relief in the form of an order restraining the first defendant from lodging for registration and the second defendant, who is the Registrar General of New South Wales, from registering any dealing whereby the joint tenancy in a property at Macmaster's Beach might be severed. 2 It was submitted that what is really being sought is Mareva type relief and such relief was not claimed in the statement of claim. I disagree. In my view, the matter was fairly raised at paragraph 40 of the statement of claim. 3 Darryl Richard Bowling, the first defendant, in opposition to the injunction made reference to Goyal v Chandra [2006] NSW SC 239; (2006) 68 NSWLR 313, where Brereton J took the view that in circumstances where orders with respect to property were being sought under the Family Law Act 1975 (Cth), it would be pointless to grant an injunction because all it would determine would be the starting point for the property adjustment regime under that Act. 4 His Honour observed at 324 [48] that if an injunction was granted, Dr Goyal might be able to establish that he was beneficially entitled to the whole of the property, whereas, if there was a severance of the joint tenancy, the starting point would be that each party would have their respective equitable interests in the property, which might never have to be precisely quantified in an application under the Family Law Act, s 49. 5 In this case, however, Mr Bowling entered into a loan agreement giving rise to an equitable mortgage in favour of Ask Funding Limited and allowed a caveat to protect that interest to be lodged on the property without, it is alleged, the consent of Mrs Bowling. 6 The amount of the loan was $70,000. It was submitted that since Mrs Bowling says that the house, the major asset, is worth between $1.1 million and $1.2 million and Mr Bowling thinks it is worth more, the loan did not jeopardise any of the rights that Mrs Bowling may have in these proceedings under the Property (Relationships) Act 1984. 7 Undertakings not to deal with the property without 14 days prior notice were given by Mr Bowling on 27 July 2010 and repeated on 10 August 2010. 8 In my view, the instant circumstances are different from those with which Brereton J dealt. Mr Bowling took the unusual course of charging the loan against the joint property without notice to his co-owner. That is sufficient to give rise to a feeling of unease that, notwithstanding the undertakings that have been given, a similar act might take place. 9 While that might not affect the inter-parties relationship, if interests in the property were to be granted bona fide and without notice to a third party, there might be a diminution in the pool of assets available for consideration by the court. 10 For those reasons, I am of the view that the decision in Goyal is distinguishable and this is a case in which an order should be made rather than reliance being placed on the undertakings that have been given. I therefore propose to grant the injunction. 11 Upon the plaintiff by her counsel giving the usual undertaking as to damages, I order that the first defendant, his servants and agents be restrained from proceeding with his application to sever, and the second defendant, his servants and agents be restrained from registering any dealing in relation to such application whereby the joint tenancy in the property at x xxxxxx xxxxxx Macmaster's Beach may be severed until further order of the court. **********