Carmen Ho v Lorenz Derek Austin Ebert

The plaintiff (Ms Ho) and the defendant (Mr Ebert) were married in Sydney on 8 August 2009. The relationship came to an end in or about December 2014. In these proceedings Ms Ho seeks an order extending the operation of a caveat which she has lodged over a property of which Mr Ebert is the registered proprietor in Burwood (the “Property”). Ms Ho is represented by Ms C. Tan, solicitor. Mr C. D. Wood of Counsel appears for Mr Ebert and opposes the extension of the caveat.

When the matter was first called on I was informed that it was likely that the parties would invite the Court to make consent orders extending the caveat for a period for the purpose, as I understand it, of allowing an application for a property settlement under the Family Law Act 1975 (Cth) (the “FLA”) to be dealt with in the Federal Circuit Court. Ms Ho has such an application on foot, which is returnable on 18 December 2015. The caveat which is the subject of these proceedings will lapse next Monday, 5 October 2015.

When I was informed of the possibility of a consent order, I drew to the parties’ attention that, having had the opportunity to review the papers, it seemed to me there was no caveatable interest. In those circumstances I indicated that the parties would have to persuade me of an appropriate basis for me to make an order extending a caveat by consent in circumstances where the Court was not satisfied there was a caveatable interest. The matter was stood down to enable discussion between the parties.

When the parties returned to the bar table I was informed that Ms Tan wished to press her client’s application for an extension of the caveat or for leave to file a fresh caveat.

There are two immediate and curious aspects to the way in which the application has been presented. First, the caveat is not actually in evidence before me. Second, the summons claims no final relief. I am not the first judge of this Division to find himself or herself in the position of again reminding the profession that applications for the extension of a caveat must be brought in a summons which also claims some form of final relief.

Be that as it may, Ms Tan has been able to inform the Court of the interest claimed in the caveat as a result of some correspondence between the solicitors which is in her possession. Apparently the nature of the interest or estate claimed in the caveat is:

The caveat was lodged in or about 2013 at a time when, in fact, there were no property settlement proceedings. However, as I have already mentioned, such proceedings have now been commenced in the Federal Circuit Court.

The fundamental difficulty in the way of Ms Ho’s application is that, on her own evidence, Ms Ho made no financial contribution to the Property, which had been acquired by Mr Ebert before his marriage to Ms Ho. Both in her supporting affidavit for these proceedings, and in the affidavit which she has sworn in support of her property settlement application, Ms Ho candidly concedes (as did Ms Tan) that her contributions were what she describes as:

The evidence demonstrates that the only basis for the interest in the Property which is claimed by Ms Ho is her alleged entitlement under the FLA to a property settlement. This is not a new problem for this Court. On several earlier occasions judges of this Division have come to the view that a claim grounded only in an alleged entitlement to a property settlement under the FLA does not create a caveatable interest in the land which may be part of the assets available for such a settlement: Ryan v Kalocsay [2009] NSWSC 1009; Choi v Kim [2013] NSWSC 1774; Reddacliffe v Strickland [2010] NSWSC 1028; Vo v Nguyen [2014] NSWSC 1622; Wu v Dardaneliotou [2008] 1319.

As White J concluded in the second-named of these cases:

I should record for completeness an alternative basis relied upon by Ms Ho for a caveatable interest in the Property. That is set out in the submissions prepared by Ms Tan and relies upon an allegation that Mr Ebert had wasted all the proceeds of sale of what had been the matrimonial home at Chiswick.

The difficulty with that claim is that the evidence is that the property at Chiswick was in the name of Mr Ebert and his former wife (not Ms Ho) and Ms Ho made no financial contribution in relation to that property.

In any event, while the claim is asserted in the submissions, Ms Tan properly concedes that there is no evidence in support of the claim before me today.

Even if there was such evidence, the absence of any financial contribution or any suggestion that Ms Ho was at any time to have an interest in that matrimonial home means that, again, no cavetable interest in the property has been disclosed.

The proper place for this dispute is in the Federal Circuit Court. The application that is currently on foot in that court includes a claim for an injunction restraining Mr Ebert from dealing with the Property and any other property of which he is apparently the registered proprietor. While that application has a return date of 18 December 2015, I have drawn to Ms Tan’s attention that, if she obtains instructions, there would be nothing to stop her proceeding immediately from this court to the Federal Circuit Court to endeavour to obtain an injunction in that court if it was minded to grant that relief on an urgent basis.

The orders of the court are: