Adamczak & Adamczak

[2022] FedCFamC1A 31

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Adamczak & Adamczak [2022] FedCFamC1A 31  

Appeal from:

Adamczak & Adamczak [2021] NSWSC 851

Appeal number(s):

EAA 88 of 2021

File number(s):

Supreme Court NSW 2019/00051555

Judgment of:

ALDRIDGE, AUSTIN & SCHONELL JJ

Date of judgment:

4 March 2022

Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Appeal from orders made by a judge of the Supreme Court of New South Wales – Appeal against orders holding a property on trust for the appellant and a costs order in favour of the appellant – Issue estoppel – Anshun estoppel – Procedural fairness – No error established – Appeal dismissed.  

Legislation:

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 7(5), 11(1)(c)

Cases cited:

Clayton v Bant (2020) 385 ALR 41; [2020] HCA 44

Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211

Kalinec & Kalinec [2021] FedCFamC1A 44

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

McKean v Page (1999) FLC 92-853; [1999] FamCA 577

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Number of paragraphs:

15

Date of hearing:

1 March 2022

Place:

Sydney

Counsel for the Appellant:

Ms Reid with Ms Ingenito

Solicitor for the Appellant:

Andrew Lee Lawyers

Counsel for the Respondent:

Mr Harding SC

Solicitor for the Respondent:

StevensVuaran Lawyers

ORDERS

EAA 88 of 2021
Supreme Court NSW 2019/00051555

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ADAMCZAK

Appellant

AND:

MS ADAMCZAK

Respondent

ORDER MADE BY:	ALDRIDGE, AUSTIN & SCHONELL JJ
DATE OF ORDER:	4 MARCH 2022

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 15 December 2021 is allowed.

2.The appeal is dismissed.

3.The appellant is to pay the respondent’s costs fixed in the sum of $29,183.59.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adamczak & Adamczak has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE, AUSTIN & SCHONELL JJ:

INTRODUCTION

1. This is an appeal against a declaration and other orders made by a judge of the Supreme Court of New South Wales on 3 August 2021 in proceedings between Ms Adamczak (“the respondent”) and Mr Adamczak (“the appellant”).

2. The primary judge declared that the appellant held the legal interest in a property in Suburb J (“the Suburb J property”) on trust for the respondent as to one half interest. Subsequent orders were made charging the appellant’s interest in the land with a…