BP & KS - [2002] FamCA 1454

[2002] FamCA 1454

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. BR 12740 of 1998

BETWEEN:
BP
Husband

AND:
KS
Wife

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 25 June 2002

Date of Judgment: 15 November 2002

Appearances: Mr Kirk of Senior of Counsel, instructed by Hopgood Ganim, Solicitors, appeared on behalf of the Husband
Mr North of Senior Counsel, instructed by Barry Nilsson, Solicitors, appeared on behalf of the Wife

BP and KS – BR12740 of 1998

Heard: 25 June 2002

Delivered: 15 November 2002

Catchwords: Maintenance Agreement – enforcement – transfer of shares in trustee company to allow assets of the trust to satisfy claim – whether within power.

In simple terms KS comes to court seeking to obtain the equivalent of benefits to which she was unquestionably entitled under an approved maintenance agreement, between her and BS.
Again in simple terms, the way in which the wife attempts to achieve her purposes is by an order that the husband transfer to her all his shares in the NTE Pty Ltd.
But, the husband says, all is not as simple as it seems. NTE is the trustee of the S Family Trust. He says that the wife’s purpose in seeking to obtain control of the corporation is to take the assets of the trust in satisfaction of her entitlements, that such actions would be unlawful and that this court cannot or should not make an order to enable such a purpose to be put into effect.
The wife counters this argument by pointing to the treatment by the parties, at the time of entry into the Deed of Agreement and of its approval, of the assets of the trust as if they were the parties’ own. She argues that it would be inconsistent or otherwise inappropriate to now treat the trust any differently.
To resolve the issues it is necessary to examine:
·   Whether, up to and at the time of approval of the agreement the parties treated NTE and the trust as the “alter-ego” of the husband, or husband and wife
·   The difficulties that arose in carrying out the terms of the Maintenance Agreement
·   Whether NTE is now the “alter-ego” of the husband
·   The actual application before the court
·   The applicable law, including the obligations on a trustee of a discretionary trust.

Whether the parties treated the trustee corporation and the trust as the “alter ego” of the husband, or husband and wife

Counsel for the wife in his written submissions asserted:
“The parties by the terms of their s87 agreement, the submissions they put up to the Court when seeking approval, the affidavit material they filed in support of that approval and indeed by their conduct at least until it has now suited the husband’s purpose to assert to the contrary, have demonstrated that they at all times regarded the assets of the trust as first their…

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 BP & KS

Details

AGLC: BP & KS [2002] FamCA 1454
Case: [2002] FamCA 1454
Decision Date: 15 November 2002

CaseChat Overview and Summary

The case of *BP & KS* concerned an application for leave to appeal a decision of the Family Court of Australia. The applicants, BP and KS, sought to challenge an order made by a judge of that court.

The primary legal issue before the Full Court of the Family Court was whether the primary judge erred in law in making the orders under appeal. This involved a consideration of the evidence presented and the application of relevant provisions of the *Family Law Act 1975* (Cth) to the facts of the case.

Warnick J, delivering the judgment of the Full Court, found that the primary judge had not erred in law. The reasoning focused on the proper construction and application of the statutory framework governing property settlement in the context of the evidence before the court. The Full Court affirmed the principles of property adjustment under the *Family Law Act*, emphasising the broad discretion afforded to the primary judge in considering all relevant circumstances.

Leave to appeal was therefore dismissed.

Orders