Bloomfield and Grainger and Anor (No 3) - [2017] FamCA 653

FAMILY COURT OF AUSTRALIA

BLOOMFIELD & GRAINGER & ANOR (NO. 3)

[2017] FamCA 653

FAMILY LAW – INTERIM – INJUNCTION – Where the First Respondent previously provided an Undertaking not to transfer, assign, convey or further mortgage or encumber the relevant property without at least 14 days prior notice in writing to the Applicant’s solicitors – where the First Respondent as seller and Ms Grainger as purchaser entered into a contract for the sale of the relevant property in December 2016 and the First Respondent informed the Applicant of this specific contract in August 2017 - Where the Applicant sought an injunction to prevent the First Respondent from dealing with or further encumbering the relevant property – Where Applicant offered usual undertaking as to damages – Application for injunction granted.

APPLICANT:

Ms Bloomfield

1st RESPONDENT:

Mr Grainger

2nd RESPONDENT:

The Bankrupt Estate of Ms Grainger

FILE NUMBER:

BRC

2014

DATE DELIVERED:

24 August 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

23 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hackett

SOLICITOR FOR THE APPLICANT:

Tucker & Cowen Solicitors

COUNSEL FOR THE 1ST RESPONDENT:

Mr Coulsen

SOLICITOR FOR THE 1ST RESPONDENT:

Morgan Conley Solicitors

FOR THE 2ND RESPONDENT:

No appearance

Orders

UPON THE USUAL UNDERTAKING as to damages offered on behalf of the Applicant by her Counsel on 23 August 2017 and accepted by the Court IT IS ORDERED UNTIL FURTHER ORDER THAT

The First Respondent, [Mr Grainger], be restrained, whether by himself, his servants or agents, from dealing with or further encumbering the real property registered in his name located at [T Street], [Suburb B] in the State of Queensland, more particularly described as Lot … on RP …17, County of …, Parish of ….

AND IT IS FURTHER ORDERED THAT

The Applicant has leave to amend paragraph 49(a) of the Statement of Claim filed 8 April 2014 by inserting the words “the trustee of the bankrupt estate of” after the phrase “Mr [Grainger] reconvey [T Street] to”.
The parties’ costs of and incidental to the Application in a Case filed 22 August 2017 are reserved to the trial judge unless either the Applicant or the First Respondent files and serves, by 4.00 pm on Thursday 31 August 2017, a written submission outlining that they wish to prosecute an application for costs in respect of the Application in a Case filed 22 August 2017 prior to the trial.
In the event that either the Applicant or the First Respondent files and serves, by 4.00 pm on Thursday, 31 August 2017, a written submission outlining that they wish to prosecute an application for costs in respect of the Application in a Case filed 22 August 2017 before trial, then:
(a)the party seeking the payment of costs shall file and serve brief written submissions in support of such application for costs within twenty-eight (28) days of today; and
(b)the party against whom an order for costs is sought shall file and serve, within a…

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: [2017] FamCA 653
Decision Date: 24 August 2017

CaseChat Overview and Summary

The proceeding involved an application by the Applicant, Ms Bloomfield, against the First Respondent, Mr Grainger, and an unnamed Second Respondent. The core of the dispute concerned an application for interlocutory relief, specifically an order restraining Mr Grainger from dealing with or further encumbering a property registered in his name at T Street, Suburb B, Queensland. The application was heard by Hogan J.

The primary legal issue before the court was whether to grant an interlocutory injunction to restrain Mr Grainger from dealing with the specified real property. This involved considering the undertaking as to damages offered by the Applicant, which is a standard requirement for such relief. The court also had to determine whether to grant the Applicant leave to amend her Statement of Claim.

Hogan J granted the interlocutory injunction upon the usual undertaking as to damages. The court reasoned that this restraint was necessary to preserve the status quo pending the final determination of the proceedings. Furthermore, the court granted the Applicant leave to amend her Statement of Claim to include a specific phrase relating to the trustee of Mr Grainger's bankrupt estate. The costs of the interlocutory application were reserved to the trial judge, with a mechanism provided for parties to elect to pursue costs applications before trial.

Orders

Orders of the court

UPON THE USUAL UNDERTAKING as to damages offered on behalf of the Applicant by her Counsel on 23 August 2017 and accepted by the Court IT IS ORDERED UNTIL FURTHER ORDER THAT

The First Respondent, [Mr Grainger], be restrained, whether by himself, his servants or agents, from dealing with or further encumbering the real property registered in his name located at [T Street], [Suburb B] in the State of Queensland, more particularly described as Lot … on RP …17, County of …, Parish of ….

AND IT IS FURTHER ORDERED THAT

The Applicant has leave to amend paragraph 49(a) of the Statement of Claim filed 8 April 2014 by inserting the words “the trustee of the bankrupt estate of” after the phrase “Mr [Grainger] reconvey [T Street] to”.

The parties’ costs of and incidental to the Application in a Case filed 22 August 2017 are reserved to the trial judge unless either the Applicant or the First Respondent files and serves, by 4.00 pm on Thursday 31 August 2017, a written submission outlining that they wish to prosecute an application for costs in respect of the Application in a Case filed 22 August 2017 prior to the trial.

In the event that either the Applicant or the First Respondent files and serves, by 4.00 pm on Thursday, 31 August 2017, a written submission outlining that they wish to prosecute an application for costs in respect of the Application in a Case filed 22 August 2017 before trial, then:

(a) the party seeking the payment of costs shall file and serve brief written submissions in support of such application for costs within twenty-eight (28) days of today; and

(b) the party against whom an order for costs is sought shall file and serve, within a further twenty-eight (28) days thereafter, any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

(c) the party seeking an order for costs shall file and serve any brief further written submissions within fourteen (14) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

and any such application for costs shall be considered in Chambers.

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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