Allan and Ors & Allan and Ors - [2014] FamCAFC 162

FAMILY COURT OF AUSTRALIA

ALLAN AND ORS & ALLAN AND ORS

[2014] FamCAFC 162

FAMILY LAW – APPEAL – Where re-instatement of an abandoned appeal sought by the second applicant husband – In the absence of prejudice or injustice to the husband the application for re-instatement is dismissed – Husband to pay the party/party costs of the wife, the third respondent and the fourth respondents in respect of the failed application for re-instatement and the abandoned appeal.

FAMILY LAW – APPEAL – Where third applicant seeks leave to appeal out of time – Where third applicant as new trustee of a trust is bound by the conduct of the previous trustee in reaching a compromise and consenting to court orders – Where an appeal against the orders by the trustee does not lie in a challenge to the merit of the orders – Where a point is not taken at first instance which could have been addressed by the other parties it cannot be taken afterwards on appeal – Where any breach of fiduciary duty alleged against the former trustee should be remedied by separate cause of action against the former trustee – An appeal by the third applicant on the grounds he contemplates would be futile – Application dismissed – Third applicant to pay the party/party costs of the wife, the third respondent and the fourth respondents in respect of the failed application for leave to appeal out of time.

Family Law Act 1975 (Cth): ss 94, 117
Trustee Act 1925 (NSW): s 9
Family Law Rules 2004 (Cth): rr 1.14, 22.13, 22.43

Application of Richard Albarran; Harb v Harb [2010] NSWSC 1251
Bemert & Swallow (2010) FLC 93-441
Coulton v Holcombe (1986) 162 CLR 1
Davidson & Davidson (No 2) (1994) FLC 92-469
Dowling v St Vincent de Paul Society Inc [2003] VSC 454
Gallo v Dawson (1990) 93 ALR 479
Gilbert v Estate of Gilbert (1990) FLC 92-125
Harvey v Phillips (1956) 95 CLR 235
Haykal & Krawiec & Anor [2014] FamCAFC 110
In re Earl of Strafford, deceased; Royal Bank of Scotland Ltd v Byng [1980] 1 Ch 28
Jackamarra v Krakouer (1998) 195 CLR 516
Maitland v Nationwide News Pty Ltd [2004] NSWCA 155
Metwally v University of Wollongong (1985) 60 ALR 68
Panayotides & Panayotides (1997) FLC 92-733
Re Irismay Holdings Pty Ltd [1996] 1 Qd R 172
Rinehart v Welker [2012] NSWCA 95
Stollznow v Calvert [1980] 2 NSWLR 749
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

1^ST APPLICANT:

2^nd APPLICANT:

3^rd APPLICANT:

Ms C Allan

Mr Allan

Mr CC

1^ST RESPONDENT:

2^nd RESPONDENT:

3^rd RESPONDENT:

4^th RESPONDENTS:

5^th RESPONDENT:

Mrs Allan

Mr Senne as Trustee of the AM Trust

Mr Senne

Mr D & CP as Receivers and Managers of W Nominees No 2 Pty Ltd (Receivers and Managers appointed) (in liquidation)

A Finance Ltd

FILE NUMBER:

SYC

3842

2008

APPEAL NUMBER:

2014

DATE DELIVERED:

2 September…

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.

Keep reading for free

Create a free CaseChat account to read Allan and Ors & Allan and Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FamCAFC 162
Decision Date: 2 September 2014

CaseChat Overview and Summary

The case involves an appeal in family law proceedings between multiple parties. The second applicant, Mr Allan, sought to reinstate an abandoned appeal. The third applicant, Mr CC, sought leave to appeal out of time as the new trustee of a trust. The court was required to decide whether the application for reinstatement should be allowed and whether the third applicant's appeal out of time should be permitted.

The court dismissed the application for reinstatement as there was no prejudice or injustice to Mr Allan. It also dismissed the application for leave to appeal out of time, finding that Mr CC was bound by the conduct of the previous trustee in reaching a compromise and consenting to the court orders. The court held that an appeal against the orders by the trustee did not lie in a challenge to the merit of the orders, and that any breach of fiduciary duty should be remedied by a separate cause of action against the former trustee.

The court further held that any point not taken at first instance which could have been addressed by the other parties could not be taken afterwards on appeal. As a result, the appeal by the third applicant on the grounds he contemplated would be futile. The application was dismissed, and Mr CC was ordered to pay the party/party costs of the first respondent, the third respondent, and the fourth respondents in respect of the failed application for leave to appeal out of time.

The court ordered that Mr Allan pay the party/party costs of the first respondent, the third respondent, and the fourth respondents in respect of the failed application for reinstatement and the abandoned appeal. The costs were to be paid in equal shares until satisfaction of their respective costs or exhaustion of the funds, with any remaining balance to be paid to Mr Allan.

Orders

Orders of the court

1. The Application in an Appeal filed on 1 July 2014 by the second applicant is dismissed.

2. Subject to Orders 3 and 4 hereof:

(a) The Response to an Application in an Appeal filed on 16 July 2014 by the fourth respondents is dismissed.

(b) The Response to an Application in an Appeal filed on 18 July 2014 by the first respondent is dismissed.

3. The second applicant (Mr Allan) shall pay:

(a) the costs of the first respondent (Mrs Allan), the third respondent

(Mr Senne), and the fourth respondents (the Receivers and Managers of

W Nominees No.2 Pty Ltd (Receivers and Managers appoint.)(in liq.)) incidental to the determination of the Application in an Appeal filed on 1 July 2014 on a party/party basis in the sums agreed or assessed; and

(b) the costs of the first respondent, the third respondent and the fourth respondents incidental to the abandoned appeal (No.EA61/2014) on a party/party basis in the sums agreed or assessed; and

4. Upon agreement or assessment of the costs payable pursuant to Order 3 hereof, the second applicant shall forthwith do all such acts and things necessary to instruct and cause his solicitors to pay out of the funds they hold on trust pursuant to Order 2 made on 22 July 2014:

(a) First, the sum of costs due to the fourth respondents pursuant to Order 3(a) hereof;

(b) Secondly, the sums of costs due to the first and third respondents pursuant to Orders 3(a) and 3(b) hereof and to the fourth respondents pursuant to Order 3(b) hereof, in equal shares until satisfaction of their respective costs or exhaustion of the funds; and

5. The Application in an Appeal filed on 25 July 2014 by the third applicant is dismissed.

6. Subject to Order 7 hereof:

(a) The Response to an Application in an Appeal filed on 29 July 2014 by the second and third respondents is dismissed.

(b) The Response to an Application in an Appeal filed on 29 July 2014 by the fourth respondents is dismissed.

7. The third applicant (Mr CC) shall pay the costs of the first respondent, the third respondent, and the fourth respondents incidental to the determination of the Application in an Appeal filed on 25 July 2014 on a party/party basis in the sums agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.