Family Court Of Australia
| I LIMITED & CHESTER AND ORS | [2010] FamCAFC 251 |
| FAMILY LAW - APPEAL – PROPERTY – Appeal by a litigation funder – The effect of a consent order – Where the Federal Magistrate was in error in finding that the consent orders made between the litigation funder and the Wife embodied a binding agreement or a contractual agreement which could not be varied – Where the Federal Magistrate was in error in finding that the litigation funder would receive less than it was entitled to receive pursuant to loan agreements – Where the Federal Magistrate was in error in finding that the value of its security would be reduced – Where the Federal Magistrate failed to give adequate reasons – Where the Federal Magistrate did not have the power to vary the orders made in the Supreme Court of Queensland – Leave to appeal granted – Appeal allowed FAMILY LAW - CROSS APPEAL – Whether the Federal Magistrate erred in failing to make an adjustment in favour of the Husband in respect of a contingent liability under a guarantee of a lease of premises formerly occupied by a business owned by the Husband and Wife – Cross appeal dismissed |
| Bankruptcy and Family Law… |
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- AGLC
- Akston & Boyle [2010] FamCAFC 251
- Case
- [2010] FamCAFC 251
- Decision Date
CaseChat Overview and Summary
The court held that the Federal Magistrate had erred in several respects. Firstly, the Magistrate incorrectly found that the consent orders were a binding agreement or a contractual agreement that could not be varied. The court clarified that the orders were not binding in the way the Magistrate had interpreted them. Secondly, the Magistrate’s finding that I Limited would receive less than it was entitled to under the loan agreements was also incorrect. The court found that I Limited was entitled to the full amount specified in the loan agreements. Lastly, the Magistrate failed to give adequate reasons for his decision, and he did not have the power to vary the orders made in the Supreme Court of Queensland.
The court granted I Limited leave to appeal and allowed the appeal. The amount specified in the original order was altered to reflect the correct figure owed to I Limited. The court also set aside the second order made by the Federal Magistrate. The cross-appeal by the Husband was dismissed. The court ordered that costs be assessed and paid according to the findings, with specific provisions for disbursing funds to I Limited and the Husband based on the assessed costs.
Orders
Orders of the court
1.
I Limited be granted leave to appeal against orders 1(a) and 2 made by Federal Magistrate Baumann on 29 January 2010.
2.
The appeal be allowed.
3.
The amount of “$165,690.37” in order 1(a) made by Federal Magistrate Baumann on 29 January 2010 be altered by the deletion of that amount and the insertion in lieu thereof of the amount of “$71,565.82”.
4.
The amount of $106,279.81 remain in trust pending quantification of the costs of I Limited pursuant to the order of Justice [ … ] made on [ … ] December 2009 in proceedings in the Supreme Court of Queensland between I Limited and the Wife or any other order for costs in favour of I Limited.
5.
The amount of $106,279.81, referred to in order (4) hereof, be disbursed following such assessment to I Limited in payment of its costs so assessed up to the amount of $106,279.81.
6.
If the costs of I Limited are assessed in a lower amount then the balance of $106,279.81, referred to in order (4) hereof, be disbursed to the Husband.
7.
Order 2 made by Federal Magistrate Baumann on 29 January 2010 be set aside.
8.
The cross-appeal by the Husband be dismissed.
9.
Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by I Limited and the cross-appeal by the Husband by filing such submissions at the Northern Region Appeal Registry of the Family Court of Australia and serving them on the other parties within 21 days of the date hereof.
10.
Each party have a further seven days in which to make written submissions in answer thereto by filing such submissions at the Northern Region Appeal Registry of the Family Court of Australia and serving them on the other parties.
11.
Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Northern Region Appeal Registry of the Family Court of Australia and serving it on the other parties within a further seven days.
12.
Each party endorse on the cover sheet of any submissions filed pursuant to orders (9), (10) and (11), the date upon which a copy of that submission was served on the other parties.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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