Akston & Boyle

Case [2010] FamCAFC 251


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

Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
Allesch v Maunz (2000) 203 CLR 172
Ascot Investments Pty Ltd v Harper & Anor (1981) 148 CLR 337
ASIC and Rich & Anor (2003) FLC 93-171

Baines & Anor v State Bank of New South Wales (1985) 2 NSWLR 729

Blundstone v Johnson & Anor [2010] QCA 148
Chandless-Chandless v Nicholson [1942] 2 All ER 315
Chavez v Moreton Bay Regional Council [2009] QCA 348
Cliffs Robe River Iron Associates v Dravo Pty Ltd [1988] WAR 322
De Lasala v De Lasala [1980] AC 546
Ernst & Young (a firm) v Butte Mining [1996] 2 All ER 623
General Accident Fire & Life Assurance Corporation Ltd v Inland Revenue Commissioners [1963] 1 All ER 618
General Credits Ltd v Ebsworth [1986] 2 Qd R 162
Harris vCaladine (1991) 172 CLR 84
Harvey v Phillips & Anor (1956) 95 CLR 235
Kirkpatrick v Kotis (2004) 62 NSWLR 567
Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1
McDonald and McDonald (1976) FLC 90-047
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Paino v Hofbauer (1988) 13 NSWLR 193
Pettitt v Dunkley [1971] 1 NSWLR 376
R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 80 ALR 134
Ravasini and Ravasini (1983) FLC 91-312
Short v Crawley (No 42) [2009] NSWSC 1110
Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 All ER 377
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd & Ors (2004) 219 CLR 165
Wentworth v Bullen (1829) 9 B & C 840
Wilkshire and Coffey v Commonwealth of Australia (1976) 9 ALR 325
Williams v Turner [2009] 1 Qd R 296

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AGLC
Akston & Boyle [2010] FamCAFC 251
Case
[2010] FamCAFC 251
Decision Date

CaseChat Overview and Summary

In the appeal case of Akston & Boyle, the parties involved were I Limited, a litigation funder, the Wife, and the Husband, who were embroiled in a family law dispute. The main issue before the court was the interpretation and effect of consent orders made between I Limited and the Wife. The Federal Magistrate had previously ruled that the consent orders constituted a binding agreement that could not be varied, and that I Limited would receive less than it was entitled to under its loan agreements. Additionally, the Magistrate ruled that the value of I Limited’s security would be reduced. The Husband also filed a cross-appeal, arguing that the Magistrate erred in not making an adjustment in his favour regarding a contingent liability under a guarantee of a lease for premises formerly occupied by a business he and the Wife owned.

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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