Allan and Allan & Ors (No 2) - [2012] FamCA 932

FAMILY COURT OF AUSTRALIA

ALLAN & ALLAN AND ORS (NO 2)

[2012] FamCA 932

FAMILY LAW – application to reopen – where there is no proven explanation as to why evidence was not adduced at the first hearing – where there would be prejudice to the other party – application to reopen refused
FAMILY LAW – INJUNCTIONS – whether there was a case that the mortgagee had acted imprudently – where there was a lack of payment into court or undertaking as to damages – where no injunction is granted to interfere with the mortgagee’s power of sale

FAMILY LAW – application to remove caveats – where the husband has no basis to maintain caveats lodged by him

Family Law Act 1975 (Cth)
Conveyancing Act 1919 (NSW)
Corporations Act 2001(Cth)

Real Property Act 1900 (NSW)

Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676

Upton v Tasmanian Perpetual Trustees Ltd [2007] FCAFC 57

Inglis v Commonwealth Trading Bank in Australia (1972) 126 CLR 161

St George Bank Ltd v JB (Northbridge) Pty Ltd [2009] NSWSC 1347

Visbord v Federal Commissioner of Taxation (1943) 68 CLR 354

Composite Buyers Ltd v Soong (1995) 38 NSWLR 286
Anna Katherine Szozda & Ors v NSW Trustee & Guardian & Ors [2012] NSWSC 194

J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Eng Mee Yong & Ors v Letchumanan [1980] AC 331
Martyn and Another v Glennanand Another [1979] 2 NSWLR 234

Riverview Projects Pty Ltd v Elleray & Anor [2007] VSC 150

Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd [2005] NSWSC 997

Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 87

Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd and Anor [1994] 1 VR 672
Latec Investments Ltd v Hotel Terrigal Pty Ltd (In Liq) (1965) 113 CLR 265

Vasiliou v Westpac Banking Corporation & Ors [2007] VSCA 113

Patmore v Upton [2004] TASSC 77
Stone and Anor v Leonardisand Anor [2011] SASC 153

Gippsreal Ltd v Paul Vincent Hanna [2009] NSWSC 169

APPLICANT:

Ms Allan

1^st RESPONDENT:

Mr Allan

3^rd RESPONDENT:

Ms B

4^th RESPONDENT:

Mr C

5^th RESPONDENT:

Ms D

6^th RESPONDENT:

Ms E

7^th RESPONDENT:

S Nominees

8^th RESPONDENT:

Ms G

9^th RESPONDENT:

Mr H

10^th RESPONDENT:

Mr J

11^th RESPONDENT:

Mr K

12^th RESPONDENT:

Mr L as trustee for M Trust

13^th RESPONDENT:

Mr L

14^th RESPONDENT

N Pty Ltd

INTERVENORS :

Mr O & Mr P (Receivers)

FILE NUMBER:

SYC

3842

2008

DATE DELIVERED:

26 October 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

6 September 2012; 19 October 2012

REPRESENTATION

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Green

SOLICITOR FOR THE 1^ST RESPONDENT:

Litigant in person

SOLICITOR FOR THE 12^TH RESPONDENT:

Delaney Lawyers

COUNSEL FOR INTERVENORS:

Mr Roberts

SOLICITOR FOR INTERVENORS:

Kelly & Co…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FamCA 932
Decision Date

CaseChat Overview and Summary

The Family Court of Australia, in the matter of *Allan & Allan and Ors (No 2)*, heard an application by the husband, Mr Allan, who sought to reopen proceedings and to injunct N Pty Ltd, a mortgagee, from selling certain properties. The husband, an undischarged bankrupt, also sought various orders relating to the management and financing of the properties, including a request for a further loan. N Pty Ltd consented to being joined as a party for the purpose of opposing the husband's applications and seeking costs.

The court was required to determine several legal issues. Firstly, whether to grant the husband leave to reopen the hearing to adduce fresh evidence, considering whether this evidence could have been presented earlier, the prejudice to other parties, and the overall impact on the interests of justice. Secondly, the court considered the husband's application to injunct N Pty Ltd from exercising its power of sale, and whether there was a basis to suggest the mortgagee had acted imprudently. Finally, the court addressed the husband's application to set aside a subpoena issued to HWL Ebsworth Lawyers, the solicitors for N Pty Ltd and the Receivers, for the production of documents relating to the sale of the properties.

Regarding the application to reopen, the court applied the principle that a party is generally bound by the conduct of their case. It found no adequate explanation for why the evidence sought to be adduced could not have been presented at the original hearing. The court also noted that the Receivers would suffer prejudice due to the late service of the material and that the admissible parts of the new evidence would not likely affect the result. Consequently, the application to reopen was dismissed. The court also dismissed the husband's application to injunct N Pty Ltd, noting the lack of payment into court or an undertaking as to damages, and that the husband had no basis to maintain caveats lodged by him. The subpoena to HWL Ebsworth Lawyers was also set aside.

The court ordered that the husband's applications filed on 17 August 2012 and 9 October 2012 be dismissed. It further ordered that the subpoena issued to HWL Ebsworth Lawyers be set aside. The husband was directed to take all necessary steps to lodge a Notice of Withdrawal of Caveats and to execute specific documents, failing which the Registrar of the Family Court of Australia was appointed to execute such documents on his behalf. Finally, the husband was ordered to pay the costs of the Receivers and N Pty Ltd.

Orders