BAINBRIDGE & BAINBRIDGE - [2016] FamCA 1049

FAMILY COURT OF AUSTRALIA

BAINBRIDGE & BAINBRIDGE

[2016] FamCA 1049

FAMILY LAW – PROPERTY – UNDERTAKINGS – where husband seeks to be released from undertakings – where wife seeks undertakings be suspended – where subsequent events have overtaken the undertaking – where obligations are impossible to perform in the future – where husband no longer has control of company – where company is in liquidation – where the car has been repossessed – where both husband and wife face bankruptcy – where husband has been released from undertaking – grounds for discharge and proof of injustice

FAMILY LAW – COSTS – where husband seeks wife pays costs of these proceedings on an indemnity basis – where wife is ordered to pay the husbands costs

Family Law Act 1975 (Cth) ss 79, 117(2A)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
AMP Investments Pty Ltd v Trade Practices Commission (1983) 49 ALR 475
Marello & Marello [2011] FamCA 799

APPLICANT:

Mr Bainbridge

RESPONDENT:

Ms Bainbridge

FILE NUMBER:

BRC

8527

2015

DATE DELIVERED:

7 December 2016

PLACE DELIVERED:

Cairns

PLACE HEARD:

In Chambers

JUDGMENT OF:

Tree J

HEARING DATE:

Last submissions 28 October 2016

REPRESENTATION

SOLICITORS FOR THE APPLICANT:

Barry Nilsson Lawyers

SOLICITORS FOR THE RESPONDENT:

Peter J Sheehy Solicitor

Orders

The applicant be released from the Undertaking provided to the Court by him on 7 March 2016 with effect from 31 July 2016.
The respondent pay the applicant’s costs of his Application in a Case filed 16 September 2016 incurred on and from 17 September 2016, in any event.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bainbridge & Bainbridge has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: BRC8527/2015

Mr Bainbridge

Applicant

And

Ms Bainbridge

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 30 October 2015 Ms Bainbridge (“the wife”) commenced proceedings against Mr Bainbridge (“the husband”) seeking a division of the parties’ matrimonial property. On 7 March 2016, the parties entered into an interim property settlement pursuant to which the husband undertook to either meet the payment of, or cause payment of, four specific expenses of the wife. By Application in a Case filed 16 September 2016, he seeks to be released from those undertakings with effect from 31 July 2016. By her response filed 6 October 2016, the wife opposes that release, but rather seeks that the husband’s obligations under the undertakings be suspended with effect from 16 September 2016.
When the husband’s Application in a Case came on for hearing before me on 28 September 2016, by consent a timetable was made for the filing of further material by the parties, and written submissions. Those orders provided that at the conclusion of the exchange of the relevant submissions, the matter would stand reserved for determination in chambers.
This is that determination and the reasons for it.

THE…

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.

Continue reading BAINBRIDGE & BAINBRIDGE

Details

AGLC: BAINBRIDGE & BAINBRIDGE [2016] FamCA 1049
Case: [2016] FamCA 1049
Decision Date: 7 December 2016

CaseChat Overview and Summary

In the matter of *Bainbridge & Bainbridge*, heard before Tree J, the husband sought to be released from undertakings he had previously provided to the Court, while the wife sought to have those undertakings suspended. The dispute arose due to subsequent events that rendered the performance of the undertakings impossible, including the husband no longer having control of a company, the company entering liquidation, the repossession of a car, and both parties facing bankruptcy.

The central legal issues before the Court were whether the husband should be released from his undertakings, and on what grounds such a release could be granted, particularly where the obligations had become impossible to perform. Additionally, the Court was required to determine the wife's application for the husband to pay the costs of these proceedings on an indemnity basis.

Tree J reasoned that the undertakings were no longer capable of performance due to circumstances beyond the husband's control, and that requiring him to continue to be bound by them would cause injustice. The Court applied principles relating to the discharge of undertakings where subsequent events make performance impossible or inequitable. Regarding costs, the Court ordered that the wife pay the husband's costs of his application.

Consequently, the Court ordered that the husband be released from the undertaking provided on 7 March 2016, with effect from 31 July 2016. The respondent wife was ordered to pay the applicant husband’s costs of his application filed on 16 September 2016, incurred from 17 September 2016, in any event.

Orders

Orders of the court

The applicant be released from the Undertaking provided to the Court by him on 7 March 2016 with effect from 31 July 2016.

The respondent pay the applicant’s costs of his Application in a Case filed 16 September 2016 incurred on and from 17 September 2016, in any event.

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.