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:

1. 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 husband’s Application, an issue remained unresolved upon which I directed and invited further submissions. This arose from the nature of a document produced and marked Exhibit 1, as to the funds deposited to the account of Legacy Legal. It seems Legacy Legal is a legal firm authorised to practice, at least in New South Wales, with – it seems to me – a New South Wales trust account. Subsequent to that Judgment, at 4.41pm yesterday, 30 June 2021, an affidavit prepared by the solicitors for the husband was filed.

2. I have read the affidavit, and note that it clearly identifies and is consistent with what the husband had previously told the Court in an earlier affidavit, that BB Pty Ltd made a loan to him, and deposited – I infer at his direction – the funds into his solicitor’s trust account. My earlier Reasons make it clear that Mr Brie offered to use those funds variously for either a payment to the wife as part of the funds due to her under my earlier final Orders in the hope that it would engender some negotiations, so as to obtain an extension of time to pay the balance of funds. Further, after the appointment of the Trustee under my earlier Orders, Mr Brie indicated he was prepared to pay those funds to the Trustee.

3. The sworn evidence of Mr Brie and the offers he was prepared to make after the funds had been deposited to the account of Legacy Legal, in my view, make it clear that:

   (a)the funds were, on whatever terms, agreed between the lender, BB Pty Ltd, and the husband, Mr Brie, a loan;

   (b)there is no evidence that the Trustee of the funds, Legacy Legal (who have chosen to make no direct submissions on behalf of the firm, or as Trustee of the funds, to the Court today) had any notice of any imposed terms of the Trust when the funds were advanced to Mr Brie and deposited at his direction to their firm’s Trust account; and

   (c)Mr Brie’s evidence now suffers the criticism of both:

   (i)not being supported by direct evidence from his brother, Mr Y Brie, who – it is asserted by Mr Brie – imposed conditions on the loan; and

   (ii)as a result, the inference available to the Court under Jones & Dunkel (1959) 101 CLR 298, is available so as to find, as I do, that there was no evidence that Mr Y Brie could have given that would have assisted his brother, Mr Brie.

4. I am comfortably satisfied that the funds held on Trust by Legacy Legal are the funds of Mr Brie, by reason of at least, on his own evidence, a loan to him from BB Pty Ltd. He has known, he says now, since at least 19 May 2021 that his brother, on behalf of BB Pty Ltd, demanded the return of the funds. No satisfactory explanation is provided to this Court as to why the nature of that demand was not part of the evidence put before the Court at its hearing on 21 May 2021. Nothing legally turns on that, other than to raise further concerns in my mind that the evidence of Mr Brie today has a hint of construction for the purpose of a particular argument.

5. However, I return to the very basic proposition. Mr Brie obtained a loan from BB Pty Ltd. There is no evidence of anything in writing between BB Pty Ltd and Mr Brie as to the terms of the loan. Once the loan had been perfected – which it was when the funds, at the direction I infer of Mr Brie, were paid to the trust account of Legacy Legal - whatever remedies may be open to BB Pty Ltd against Mr Brie are a matter for another Court. They are simply in the position of debtor and creditor.

6. In the circumstances, I regard it as appropriate that the funds be released immediately. I have read the submissions of Ms Keating on behalf of her client, the Trustee. I am aware, of course, of the Orders made in relation to the Trustee’s use of funds on liquidation in the normal course. The Trustee, through the submissions of Ms Keating, seeks a payment of $60,000 towards current and anticipated costs. That is probably just a partial payment in view of the potential complexities of this matter and the potential liquidation. Mr Hackett, on behalf of the wife, who is entitled to the fruits of the primary Order, seeks that the whole of the funds of $200,000 be paid to the wife. It seems to me that it is important, in terms of the enforceability of the Orders, that the liquidator not be impeded as to lack of funds, to progressing quickly with the obligations created by the Order by which the Trustee is bound to perform. 

7. In the circumstances and in the exercise of my discretion, I propose to make an Order that the husband shall, by 1.00pm today, provide a written authority directed to his solicitors, Legacy Legal, as Trustees, for the sum of $200,000 currently deposited in the Trust Account, to be released as to:

   (a)$140,000 to the wife, Ms Brie; and

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

8. I will Order that if the authority is not provided by 1.00pm today – and in that regard, I will direct that the solicitors on the record for the husband are to confirm that the authority has been received by 1.00pm today - a Registrar of the Family Court of Australia shall have authority under s 106A of the Family Law Act 1975 (Cth), and the usual provisions to sign authority to Legacy Legal on behalf of the husband.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:

Dated:       26 July 2021