FAMILY COURT OF AUSTRALIA
| ATKINS & HUNT AND ORS | [2020] FamCAFC 252 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Dispute as to husband’s interest in family companies – Where the husband transferred and disposed of part of his shares from a holding company when the wife’s appeal was pending – “Mere puppet” argument – Where the wife orally asserted that the primary judge introduced two elements to the test, namely a first limb being the establishment of a “mere puppet” and a second limb being “that the company does not truly exist as a separate legal entity”– Onus on the wife to establish “mere puppet” case – Where a Ferrcom inference does not have to be drawn and whether it is drawn remains a matter for the primary judge – Challenge to the observational reference made by the primary judge to s 232 and s 254T of the Corporations Act 2001 (Cth) – Likelihood of any respondents seeking to invoke their rights under the Corporations Act 2001 (Cth) – Where issue was not ventilated before the primary judge – Where the primary judge factored in the ability of the husband to control the direction of income into the value of his shares and included a control premium – Inadequate proof of liabilities by the wife as to whether they were devoted to living expenses or legal fees – Where counsel for the wife encouraged the primary judge to “take a more global approach” in relation to such liabilities – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the wife has been wholly unsuccessful and has the capacity to meet an order for costs against the respondents – Costs order in the sum claimed by husband – Wife to pay the costs of the other respondents as agreed or assessed. |
| Corporations Act 2001 (Cth) ss 232, 254T, 254W Family Law Act 1975 (Cth) ss 75, 79, 106B, 117(2A) |
| Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1 Atkins & Hunt and Ors (2017) FLC 93-774; [2017] FamCAFC 79 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 CDJ & VAJ (1998) 197 CLR 172; [1998] HCA 67 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Cook’s Construction Pty Ltd v Brown and Anor (2004) 49 ACSR 62; [2004] NSWCA 105 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 S & M & Ors [2003] FamCA 1387 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
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- AGLC
- Atkins & Hunt [2020] FamCAFC 252
- Case
- [2020] FamCAFC 252
- Decision Date
CaseChat Overview and Summary
The court examined the wife's arguments and found them to be without merit. The court concluded that the wife had not established a "mere puppet" case, and the primary judge's assessment of the husband's interest in the family companies was appropriate. The court also found that the wife's challenge to the observational reference to sections 232 and 254T of the Corporations Act 2001 (Cth) was not valid, as the issue had not been raised before the primary judge. The court further determined that the primary judge's inclusion of the husband's control over income and the addition of a control premium were justified. The wife's inadequate proof of liabilities and her counsel's encouragement of a "global approach" did not sway the court's decision. As a result, the appeal was dismissed.
The court further addressed the issue of costs, taking into account the wife's complete lack of success and her capacity to pay. The court ordered the wife to pay the husband's costs in the sum of $36,431 within twenty-eight days. In the event of failure to agree on the costs of the second to seventh respondents, the wife was to pay their assessed party/party costs within twenty-eight days of their assessment. This decision ensures that the parties are held accountable for their respective costs in accordance with the outcome of the appeal.
The court's orders were as follows: the Further Amended Notice of Appeal filed on 30 April 2020 was dismissed, as was the respondent husband's Notice of Contention filed on 4 February 2020. The appellant wife was to pay the respondent husband's costs in the sum of $36,431 within twenty-eight days. In default of agreement, the appellant wife was to pay the assessed party/party costs of the second to seventh respondents within twenty-eight days of their assessment. The form of the order was subject to the entry of the order in the Court's records.
Orders
Orders of the court
1.
The Further Amended Notice of Appeal filed on 30 April 2020 be dismissed.
2.
The respondent husband’s Notice of Contention filed on 4 February 2020 be dismissed.
3.
Within twenty-eight (28) days, the appellant wife pay the respondent husband’s costs in the sum of $36,431.
4.
In default of agreement, within twenty-eight (28) days of their assessment, the appellant wife pay the assessed party/party costs of the second to seventh respondents.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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