BARSTOW & BARSTOW & ORS - [2020] FCCA 1298

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARSTOW & BARSTOW & ORS

[2020] FCCA 1298

Catchwords:
FAMILY LAW – Property – interim applications – where the Applicant Husband entered bankruptcy and a company of which the Husband was the director entered into liquidation in December 2019 – where the Husband seeks orders for discovery against the Wife – where the Wife seeks an injunction against the liquidator to prevent the liquidator dealing with real property owned by the company in liquidation as trustee of a family trust – where the Wife seeks that the matter be transferred to the Family Court of Australia.

Legislation:

Acts Interpretation Act 1901 (Cth), s.2C

Corporations Act 2001 (Cth), s.1337C

Family Law Act 1975 (Cth), ss.90AB, 90AC, 90AF(2), 90AF(3), 90AF(4)

Federal Circuit Court of Australia Act 1999 (Cth), ss.45(1), 45(2), 39, 18

Federal Circuit Court Rules 2001 (Cth), rr.14.02, 8.02

Cases cited:

Vinden v Wrong Fuel Rescue Pty Ltd & Anor [2019] FCCA 1091

Hearne v Street [2008] HCA 36

Applicant:

MR BARSTOW

First Respondent:

MS BARSTOW

Second Respondent:

MS RODGERS (AS THE TRUSTEE IN BANKRUPTCY OF THE BANKRUPT ESTATE OF MR BARSTOW)

Third Respondent:

MR JENKINS IN HIS CAPACITY AS LIQUIDATOR OF A PTY LTD

File Number:

ADC 560 of 2017

Judgment of:

Judge Kari

Hearing date:

11 May 2020

Date of Last Submission:

11 May 2020

Delivered at:

Adelaide

Delivered on:

25 May 2020

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Ms Horvat

Solicitors for the First Respondent:

Lindbloms Lawyers

we

Solicitors for the Second Respondent:

Mr Ryder of O’Loughlins Lawyers

Solicitors for the Third Respondent:

Mr Neate of Lynch Meyer

ORDERS

That the Application in a Case of the husband filed 1 May 2020 be dismissed.
That the Application in a Case of the wife filed 16 October 2019 be dismissed.
That paragraphs 5 and 6 of the Application in a Case of the wife filed 13 December 2019 be dismissed.
That the Application in a Case of the wife filed 19 March 2020 be dismissed.
That the Third Respondent be restrained and an injunction is granted restraining the Third Respondent from dealing in any way with the properties situate at B1 Street, Suburb C in the State of South Australia and B2 Street, Suburb C in the State of South Australia without leave of the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 560 of 2017

MR BARSTOW

Applicant

And

MS BARSTOW

First Respondent

And

MS RODGERS (AS THE TRUSTEE IN BANKRUPTCY OF THE BANKRUPT ESTATE OF MR BARSTOW)

Second Respondent

And

MR JENKINS IN HIS CAPACITY AS LIQUIDATOR OF A PTY LTD

Third Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the question of property settlement.
Unfortunately however, while the proceedings have been before the court since February 2017, they have been delayed and complicated by circumstances which…

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 BARSTOW & BARSTOW & ORS

Details

AGLC: Barstow and Barstow and Ors [2020] FCCA 1298
Case: [2020] FCCA 1298
Decision Date: 25 May 2020

CaseChat Overview and Summary

In the matter of *Barstow & Barstow & Ors*, heard before Judge Kari, the applicant husband sought discovery orders against the respondent wife in family law proceedings. The wife, in turn, sought an injunction to prevent the liquidator of a company, of which the husband was a director, from dealing with real property owned by that company as trustee of a family trust. The wife also sought the transfer of the proceedings to the Family Court of Australia. The husband had entered bankruptcy, and the company had been placed into liquidation in December 2019.

The court was required to determine whether to grant the husband's application for discovery, the wife's application for an injunction against the liquidator, and the wife's application for the transfer of the proceedings. Central to these issues was the status of the real property and the court's jurisdiction to make orders concerning it, particularly in light of the husband's bankruptcy and the company's liquidation.

Judge Kari dismissed the husband's application for discovery and several of the wife's applications, including her application for transfer of the proceedings. However, the court granted an injunction restraining the third respondent, the liquidator, from dealing with the properties located at B1 Street, Suburb C and B2 Street, Suburb C in South Australia without leave of the court. This outcome suggests the court found grounds to preserve the status quo of the disputed property pending further determination, while declining to proceed with the broader property adjustment claims or the transfer of jurisdiction.

Orders

Orders of the court

That the Application in a Case of the husband filed 1 May 2020 be dismissed.

That the Application in a Case of the wife filed 16 October 2019 be dismissed.

That paragraphs 5 and 6 of the Application in a Case of the wife filed 13 December 2019 be dismissed.

That the Application in a Case of the wife filed 19 March 2020 be dismissed.

That the Third Respondent be restrained and an injunction is granted restraining the Third Respondent from dealing in any way with the properties situate at B1 Street, Suburb C in the State of South Australia and B2 Street, Suburb C in the State of South Australia without leave of the court.

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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