Brewster and Brewster and Ors - [2016] FamCA 465

FAMILY COURT OF AUSTRALIA

BREWSTER & BREWSTER AND ORS

[2016] FamCA 465

FAMILY LAW – PROPERTY – interim – where the wife seeks orders for patrial property settlement – where the husband seeks the same for payment towards his criminal proceedings – where the second and third respondent seek leave to intervene and further that there be a declaration that they have an equitable interest in the parties property and that they each receive a sum of the proceeds of sale – where the wife enters into an undertaking as to damages in respect of relief sought by the second and third respondent – where the husband and wife each receive a sum by way of interim or partial property settlement.

FAMILY LAW – DISCOVERY – where the husband is required to produce documents in relation to the any legal proceedings relating to the husband’s alleged fraud.

Family Law Act 1975 (Cth) s 72, 74, 78, 79, 80, 114, 117
Family Law Rules 2004 (Cth) r 10.12, 10.13, 13.14

Bigg & Suzi (1998) FLC 92-799
Gitane & Velacruz (2007) FLC 93-309
Hearne v Street (2008) 235 CLR 125
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283
Pelerman & Pelerman (2000) FLC 93-037
Re Ronald Neville McGorm Ex Parte: the Co-operative Building Society of South Australia [1989] FCA 87
Strahan v Strahan (Interim property orders) (2011) FLC 93-466
Zschokke & Zschokke (1996) FLC 92-693

APPLICANT:

Ms Brewster

1st RESPONDENT:

Mr Brewster

2nd RESPONDENT:

B Pty Ltd

3rd RESPONDENT:

Mr C Brewster

FILE NUMBER:

ADC

1992

2015

DATE DELIVERED:

10 June 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

31 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lewis

SOLICITOR FOR THE APPLICANT:

David Burrell & Co

COUNSEL FOR THE 1ST RESPONDENT:

Ms Morosini

SOLICITOR FOR THE 1ST RESPONDENT:

Di Morosini & Co

COUNSEL FOR THE 2ND RESPONDENT:

Mr McGinn

SOLICITOR FOR THE 2ND RESPONDENT:

Cowell Clarke Commercial Lawyers

COUNSEL FOR THE 3RD RESPONDENT:

Mr McGinn

SOLICITOR FOR THE 3RD RESPONDENT:

Cowell Clarke Commercial Lawyers

Orders

That the Application in a Case filed by the second and third respondents on 21 March 2016 is dismissed.
That the wife enter into an undertaking as to damages in respect of the relief sought by the second and third respondents pursuant to s 78 of the Family Law Act 1975 (Cth).
That the wife be restrained and an injunction granted restraining her from selling, transferring, assigning or in any way further encumbering the property situate at D Street, Suburb E in the state of South Australia.
That the Response to an Application in a Case filed 14 April 2016 (document 25) be dismissed.
That at the election of the husband he shall produce within 21 days of the date of this order copies of the documents as provided for in order 5.5 of orders made 15 September 2015 or in the alternative the husband shall within 21 days of the date of this order…

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

AGLC: Brewster and Brewster and Ors [2016] FamCA 465
Case: [2016] FamCA 465
Decision Date: 10 June 2016

CaseChat Overview and Summary

In the matter of Brewster and Brewster and Ors, Berman J considered an application by the second and third respondents, which was dismissed. The wife was required to enter into an undertaking as to damages concerning relief sought by the second and third respondents under section 78 of the *Family Law Act 1975* (Cth). Furthermore, an injunction was granted restraining the wife from selling, transferring, assigning, or encumbering the property located at D Street, Suburb E, South Australia.

The court was required to determine several legal issues, including the validity of an application by the second and third respondents and the appropriate interim property settlement for both the husband and the wife. The court also addressed the husband's obligation to produce specific documents or seek a release from an implied undertaking concerning those documents, as previously ordered on 15 September 2015.

Berman J's reasoning involved the dismissal of certain applications and the granting of an injunction to preserve property pending further orders. The court ordered interim property settlements for both parties, each receiving $100,000 from monies held in a joint NAB account, to be paid into their respective trust accounts. The husband was also given an election regarding the production of documents or the initiation of proceedings to seek a release from an implied undertaking.

Orders

Orders of the court

That the Application in a Case filed by the second and third respondents on 21 March 2016 is dismissed.

That the wife enter into an undertaking as to damages in respect of the relief sought by the second and third respondents pursuant to s 78 of the Family Law Act 1975 (Cth).

That the wife be restrained and an injunction granted restraining her from selling, transferring, assigning or in any way further encumbering the property situate at D Street, Suburb E in the state of South Australia.

That the Response to an Application in a Case filed 14 April 2016 (document 25) be dismissed.

That at the election of the husband he shall produce within 21 days of the date of this order copies of the documents as provided for in order 5.5 of orders made 15 September 2015 or in the alternative the husband shall within 21 days of the date of this order do all things necessary to bring an application in the Adelaide Magistrates Court to seek a release from the implied undertaking in respect of the documents as described in the said order.

That without admission by the second and third respondents and by way of interim or partial property settlement the husband shall receive the total sum of $100,000 to be paid from monies held in the NAB joint account with such monies to be paid to the Di Morisini & Co trust account for and on his behalf.

That without admission by the second and third respondents and by way of interim or partial property settlement the wife shall receive the total sum of $100,000 to be paid from monies held in the NAB joint account with such monies to be paid to the David Burrell & Co trust account for and on her behalf.

That the Response to an Application in a Case filed 14 April 2016 (document 23) 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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