Badenoch & Faldyn & Anor - [2020] FCCA 1530

FEDERAL CIRCUIT COURT OF AUSTRALIA

BADENOCH & FALDYN & ANOR

[2020] FCCA 1530

Catchwords:
FAMILY LAW – Property – interim proceedings – application by the husband to set aside sale of property under s.106B – order sought by the wife for summary dismissal.

Legislation:

Family Law Act 1975 (Cth), ss.45A, 79, 106B

Federal Circuit Court of Australia Rules 2001 (Cth), rr.11.02, 13.10

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Cases cited:

Abdullah & Abdullah (1981) FLC ¶91-003
ANZ Banking Group Ltd v Harper & Ors (1988) FLC ¶91-938
D’Cruz & Pierce and Ors [2008] FamCA 819
Dougherty v Dougherty (1987) 163 CLR 278
Friar & Friar [2011] FamCAFC 71
General Steel Industries Inc. v Commissioner for Railways (N.S.W) (1964) 112 CLR 125
Gould and Gould; Swire Investments Ltd (1993) FLC ¶92-434
Heath & Heath (1983) FLC ¶91-362
Johnson & Johnson (2000) FLC ¶93-008
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Pflugradt & Pflugradt (1981) FLC ¶91-052
Ritter & Ritter and Anor (2020) FLC ¶93-95
VC & CG and ORS (2010) FLC ¶93-434

Applicant:

MS BADENOCH

First Respondent:

MR FALDYN

Second Respondent:

MR A FALDYN

File Number:

HBC 184 of 2019

Judgment of:

Judge Baker

Hearing date:

12 May 2020

Date of Last Submission:

12 May 2020

Delivered at:

Hobart

Delivered on:

22 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Foster

Solicitors for the Applicant:

Murdoch Clarke

Counsel for the First Respondent:

Self-represented

Solicitors for the First Respondent:

N/A

Counsel for the Second Respondent:

Mr Katsikaris

Solicitors for the Second Respondent:

Katsikaris Family Lawyers

ORDERS

The application in a case filed 8 January 2020 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Badenoch & Faldyn & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 184 of 2019

MS BADENOCH

Applicant

And

MR FALDYN

First Respondent

MR A FALDYN

Second Respondent

REASONS FOR JUDGMENT

Introduction

An application in a case was filed by the first respondent husband (“the husband”) on 8 January 2020, to set aside the sale of the property at B Street, Suburb C (“the property”) pursuant to s.106B(1) of the Family Law Act 1975. He also sought an order to add Mr Badenoch as a party to the proceedings. Mr Badenoch is the father of the applicant wife (“the wife”).
The substantive proceedings commenced on 6 March 2019, when the wife filed an initiating application for a property order. She sought an order that the net proceeds of sale of the property be paid to her.
On 11 June 2019, the husband filed a response seeking dismissal of the wife’s application.
On 29 August 2019, the second respondent (“the second respondent”), who is the husband’s father, filed an application in case. He sought leave to intervene and an order that the wife pay him the sum of $143,915.86. On 3 September 2019, the court ordered that the second respondent have leave…

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] FCCA 1530
Decision Date: 22 June 2020

CaseChat Overview and Summary

In *Badenoch & Faldyn & Anor*, heard by Judge Baker, the husband sought to set aside the sale of a property pursuant to section 106B of the *Family Law Act 1975* (Cth). The wife applied for summary dismissal of the husband's application.

The central legal issue before the Court was whether the husband's application to set aside the property sale had sufficient merit to proceed to a full hearing, or if it should be summarily dismissed. This required the Court to consider the threshold for setting aside a transaction under section 106B and the evidence presented by the husband in support of his claim.

Judge Baker dismissed the husband's application. The reasoning for this decision, though not detailed in the provided text, indicates that the husband failed to establish a prima facie case or meet the necessary legal threshold for setting aside the sale under section 106B, leading to the wife's successful application for summary dismissal.

The Court ordered that the application filed on 8 January 2020 be dismissed.

Orders

Orders of the court

The application in a case filed 8 January 2020 be dismissed.

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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