Brie & Brie (No. 2) - [2021] FamCA 532

FAMILY COURT OF AUSTRALIA
Brie & Brie (No. 2) [2021] FamCA 532

File number(s): BRC 4255 of 2021

Judgment of: BAUMANN J

Date of judgment: 1 July 2021

Catchwords: FAMILY LAW – PROPERTY – Where loaned funds held in a solicitor’s trust account – Where the creditor is the husband’s brother – Where the husband contends that the creditor seeks the return of the funds – Where no evidence has been put before the Court regarding the nature of the demand – Orders made directing the husband to authorise the distribution of funds to the wife and the Trustee for Sale.

Legislation cited: Family Law Act 1975 (Cth) s 106A

Cases cited: Jones & Dunkel (1959) 101 CLR 298

Number of paragraphs: 8

Date of last submission/s: 1 July 2021

Date of hearing: 1 July 2021

Place: Brisbane

Solicitor for the Applicant: Mr Tan, Legacy Legal Pty Ltd

Counsel for the Respondent: Mr P Hackett

Solicitor for the Respondent: Quinn Family Law

Solicitor for the Trustee for Sale: Ms Keating, Keating Lehn Solicitors
ORDERS

BRC 4255 of 2021

BETWEEN:
MR BRIE

Applicant

AND:
MS BRIE

Respondent

AND:
MR R

Trustee for Sale

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

1 JULY 2021

THE COURT ORDERS:
1.That by 1.00pm today, 1 July 2021, the Applicant shall provide a written authority directed to his solicitors, Legacy Legal as Trustees for the sum of $200,000, for the funds to be released as follows:
(a)$140,000 directed to the Respondent; and
(b)$60,000 directed to the liquidator, Mr R or his firm as directed.

2.That the legal representatives for the Applicant are to confirm with the other parties that a written authority has been received from the Applicant, by 1.00pm today, 1 July 2021.
3.That in the event that the Applicant refuses or neglects to sign (by 1.00pm on 1 July 2021) any document necessary to effect the terms of this Order, a Registrar of the Family Court of Australia is hereby appointed pursuant to s.106A of the Family Law Act 1975 to execute such documents on behalf of the defaulting party and to do all such acts and things necessary to give validity and operation to this Order.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brie & Brie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BAUMANN J:

On 17 June 2021, I delivered Reasons in this matter for dismissing the Initiating Application filed by the husband, Mr Brie on 1 April 2021. As a result of the dismissal of 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 Brie & Brie (No. 2)

Details

AGLC: Brie & Brie (No. 2) [2021] FamCA 532
Case: [2021] FamCA 532
Decision Date: 1 July 2021

CaseChat Overview and Summary

In the matter of *Brie & Brie (No. 2)*, Baumann J of the Family Court of Australia considered a dispute between Mr Brie (the applicant) and Ms Brie (the respondent), with Mr R acting as Trustee for Sale. The core of the dispute involved loaned funds held in a solicitor's trust account, which the husband contended his brother, the creditor, was seeking to have returned.

The primary legal issue before the Court was how to address the disposition of these loaned funds, particularly in light of the husband's assertion that the creditor sought their return, without any evidence being presented to the Court regarding the nature or specifics of this demand. The Court was required to determine the appropriate orders to ensure the funds were distributed in accordance with the parties' interests and any potential claims.

Baumann J reasoned that an order for the distribution of the funds was necessary. The Court directed the applicant, Mr Brie, to provide a written authority to his solicitors, Legacy Legal, authorising the release of $200,000 from their trust account. Of this sum, $140,000 was to be directed to the respondent, Ms Brie, and $60,000 to the liquidator, Mr R. The Court further ordered that the applicant's legal representatives confirm receipt of this authority by a specified time. In the event of the applicant's refusal or neglect to provide the necessary authorisation, the Court appointed a Registrar of the Family Court of Australia, pursuant to s.106A of the *Family Law Act 1975* (Cth), to execute such documents on behalf of the defaulting party.

Orders

Orders of the court

BRC 4255 of 2021

BETWEEN:

MR BRIE

Applicant

AND:

MS BRIE

Respondent

AND:

MR R

Trustee for Sale

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

1 JULY 2021

THE COURT ORDERS:

1. That by 1.00pm today, 1 July 2021, the Applicant shall provide a written authority directed to his solicitors, Legacy Legal as Trustees for the sum of $200,000, for the funds to be released as follows:

(a) $140,000 directed to the Respondent; and

(b) $60,000 directed to the liquidator, Mr R or his firm as directed.

2. That the legal representatives for the Applicant are to confirm with the other parties that a written authority has been received from the Applicant, by 1.00pm today, 1 July 2021.

3. That in the event that the Applicant refuses or neglects to sign (by 1.00pm on 1 July 2021) any document necessary to effect the terms of this Order, a Registrar of the Family Court of Australia is hereby appointed pursuant to s.106A of the Family Law Act 1975 to execute such documents on behalf of the defaulting party and to do all such acts and things necessary to give validity and operation to this Order.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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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File number(s):	BRC 4255 of 2021
Judgment of:	BAUMANN J
Date of judgment:	1 July 2021
Catchwords:	FAMILY LAW – PROPERTY – Where loaned funds held in a solicitor’s trust account – Where the creditor is the husband’s brother – Where the husband contends that the creditor seeks the return of the funds – Where no evidence has been put before the Court regarding the nature of the demand – Orders made directing the husband to authorise the distribution of funds to the wife and the Trustee for Sale.
Legislation cited:	Family Law Act 1975 (Cth) s 106A
Cases cited:	Jones & Dunkel (1959) 101 CLR 298
Number of paragraphs:	8
Date of last submission/s:	1 July 2021
Date of hearing:	1 July 2021
Place:	Brisbane
Solicitor for the Applicant:	Mr Tan, Legacy Legal Pty Ltd
Counsel for the Respondent:	Mr P Hackett
Solicitor for the Respondent:	Quinn Family Law
Solicitor for the Trustee for Sale:	Ms Keating, Keating Lehn Solicitors

BRC 4255 of 2021
BETWEEN:	MR BRIE Applicant
AND:	MS BRIE Respondent
AND:	MR R Trustee for Sale

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	1 JULY 2021