Olsen v Olsen [2012] NSWSC 540

A father lent money to his son to buy a house. Subsequently the son married, the marriage broke down, and the father then sought to have the mortgage registered and claim possession. The loan was said to be secured by what may have been originally an equitable mortgage created by the deposit of the certificate of title. The written acknowledgment expressed the loan to be repayable “on demand”. The wife disputed the mortgage and sought a cross-vesting order transferring the proceedings to the family court and that she be joined as a defendant.

The court was satisfied that there was a genuine dispute about the mortgage and that the issues to be resolved significantly overlapped with the family court proceedings. The court found that the father’s claim for possession fell within the scope of controversy between the husband and wife about their matrimonial financial relations because the mortgage was not legally formalised (signed and registered) until the marriage had broken down. The court found this made the Family Court the more appropriate court for the dispute to be heard.

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