Armington and Armington & Ors (No. 2) - [2020] FamCA 751

FAMILY COURT OF AUSTRALIA

ARMINGTON & ARMINGTON AND ORS (NO. 2)

[2020] FamCA 751

FAMILY LAW – LITIGATION FUNDING – dollar-for-dollar orders made in the Federal Circuit Court of Australia on 13 May 2019 – case transferred to this court – respondent applying to discharge the dollar-for-dollar order – Johns J refusing that application – respondent applying again to discharge the orders made on 13 May 2019 – application refused.

Corporations Act 2001 (Cth) s 500(2)
Family Law Act 1975 (Cth) s 117

Armington & Armington (No.2) [2019] FCCA 1232
Battiston v Maiella Construction Co Pty Ltd [1967] VR 349
Brimaud v Honeysett Instant Print (1988) 217 ALR 44
Burrell v R (2008) 238 CLR 218
Cao & Trong [2019] FamCA 336
Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328
Donne v Lewis [1805] 32 ER 1221
Emanuele v Australian Securities Commission (1997) 188 CLR 114
Ex parte Robert Devenish and Henry Devenish v Richard Bernford (1691)
Ex parte Swift [1835] 131 ER 1300
Farina & Lofts and Ors [2018] FamCA 763
Hartley Poynton Ltd v Ali (2005) 11 VR 568
In the Matter of Excelsior Textile Supply Pty Ltd [1964] VR 574
Jess & Garvey (2018) FLC 93-827
Jesson v Brewer [1763] 21 ER 312
Joubert & Verhoeven [2020] FamCA 53
Judd & Treasure [2018] FamCA 50
Lawrence v Richmond [1820] 37 ER 367
Malcher & Malcher (No. 2) [2012] FamCA 1115
National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209
Parsons v Bunge (1941) 64 CLR 421
Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516
Re Horsham Kyosan Engineering Co Ltd [1972] VR 403
Re Sydney Formworks Pty Ltd (in liq) [1965] NSWR 646
Re Testro Bros Consolidated Ltd [1965] VR 18
Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449
Simonds v Coyle (2019) 59 Fam LR 410
Snook v London and West Riding Investments Ltd [1967] 2 QB 786
Tomlinson v Ramsey Food Processing Pty Limited (2015-16) 256 CLR 507
Williamson v Henshaw [1747] 21 ER 217
Woods v Bate (1986) 7 NSWLR 560

J. Beames, General Orders of the High Court of Chancery (1815)

APPLICANT:

Ms Armington

FIRST RESPONDENT:

Mr Armington

SECOND RESPONDENT:

Company A Pty Ltd (ACN …)

THIRD RESPONDENT:

Company B Pty Ltd (ACN …)

FOURTH RESPONDENT:

Company C Pty Ltd (ACN …)

~~FIFTH RESPONDENT:~~

~~Company D2 Pty Ltd (Formerly Company D Pty Ltd (ACN …)(in liquidation))~~

~~SIXTH RESPONDENT:~~

~~Company E2 Pty Ltd (Formerly Company E Pty Ltd (in liquidation))~~

SEVENTH RESPONDENT:

Company K2 Pty Ltd (Formerly Company K Pty Ltd)

FILE NUMBER:

MLC

1627

2016

DATE DELIVERED:

9 September 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

19 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms S. Mariole

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE FIRST RESPONDENT:

Not applicable

SOLICITOR FOR THE FIRST RESPONDENT:

Not applicable

COUNSEL FOR THE SECOND RESPONDENT:

Not applicable

SOLICITOR FOR THE SECOND RESPONDENT:

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: [2020] FamCA 751
Decision Date: 9 September 2020

CaseChat Overview and Summary

In *Armington and Armington & Ors (No. 2)*, Wilson J of the Supreme Court of Queensland considered an application by the first respondent. The precise nature of the dispute is not detailed, but the proceedings involved multiple respondents.

The primary legal issue before the Court was whether to grant an application by the first respondent, and secondly, whether to make an order *nunc pro tunc* under section 500(2) of the *Corporations Act 2001* (Cth) to join the fifth, sixth, and seventh respondents to the proceeding.

Wilson J dismissed the first respondent’s application. However, the Court made an order *nunc pro tunc* joining the fifth, sixth, and seventh respondents to the proceeding, signifying that the order was to have effect as if it had been made at an earlier time. The final form of this order was subject to its entry in the Court's records.

Orders

Orders of the court

The first respondent’s application in a case dated 7 August 2020 is dismissed.

I make an order nunc pro tunc under s 500(2) of the Corporations Act joining the fifth, sixth and seventh respondents to this proceeding.

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

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.