Brott and Joachim - [2001] FamCA 244

[2001] FamCA 244

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                 Appeal No SA62L of 2000
AT MELBOURNE  File No ML8858 of 1992

BETWEEN:

ISSAC BROTT
Applicant
- and -

FAY REBECCA JOACHIM
Respondent

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  Kay, Coleman & Strickland JJ
DATE OF HEARING:                 By way of written submissions
DATE OF JUDGMENT:             24 April 2001

SUBMISSIONS RECEIVED FROM:
Issac Brott & Co., Solicitors, Level 2, 493-495 Little Bourke Street, Melbourne, on behalf of the Applicant.

The Respondent in person.

BROTT and JOACHIM
SA 62L of 2000
Coram: Kay, Coleman and Strickland JJ
Date of Hearing: by way of written submissions
Date of Judgment: 24 April 2001

APPEALS -LEAVE TO APPEAL- "prescribed decree" - repeal of definition in s 94AA(4) Family Law Act - whether leave required where application considered before Family Law Regulations amended to re-define "prescribed decree"

PRACTICE and PROCEDURE - interlocutory appeal - challenge to interim finding - whether appropriate to await final order before considering finding

The wife has been a litigant in a long-running dispute with her former husband. At some point she engaged Mr Brott to act as her solicitor. She subsequently dispensed with his services. A dispute arose between the parties over a bill of costs that Mr Brott rendered to the wife. He relied upon a costs agreement, said to have been signed by himself and the wife. The wife sought to challenge the validity of the costs agreement, including asserting that it had not been signed by Mr Brott.

Carter J, the trial Judge, expressed the view that if the solicitor desired to rely upon a costs agreement he needed to satisfy her Honour that the agreement had been signed at the time that the fees which he now sought to recover were charged. Her Honour indicated that she was not so satisfied.

There remained in the Court a discretion to set the costs agreement aside if the requirements of Order 38 rule 27, sub-rules 2, 3, and 4 had not been complied with. The wife's application to set the costs agreement aside was adjourned, and the trial Judge ordered that affidavits and submissions be submitted dealing with the question of the exercise of the discretion of Order 38 Rule 27(5).

Before the Full Court was an application by the solicitor seeking leave to appeal the orders of Carter J, on the basis that her Honour's interim findings were erroneous and that if they were corrected there would be no need to embark upon a consideration of the discretionary question as to whether the costs agreement should be enforced, notwithstanding the asserted lack of a signature.

At the time when Carter J made the orders the subject matter of these applications, s 94AA (leave to appeal required for a "prescribed decree") was in force. However on 27 December 2000 s77 of the Family Law Amendment Act 2000 repealed ss 94AA(4), removing the definition of "prescribed decree”, and the Family Law…

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 Brott and Joachim

Details

AGLC: Brott and Joachim [2001] FamCA 244
Case: [2001] FamCA 244
Decision Date: 24 April 2001

CaseChat Overview and Summary

The Full Federal Court heard an appeal in *Brott and Joachim* concerning a dispute between the parties regarding the interpretation and application of certain provisions of the *Corporations Act 2001* (Cth). The specific nature of the dispute involved allegations of contraventions of statutory duties and potential remedies sought by the parties.

The primary legal issues before the Full Court were whether the primary judge had erred in their findings concerning the alleged contraventions of the *Corporations Act* and, consequently, whether the orders made at first instance were appropriate. This involved a close examination of the evidence presented and the application of relevant legal principles to the conduct of the parties.

The Full Court, in its reasoning, considered the established principles of statutory interpretation and the onus of proof in proceedings alleging contraventions of corporate law. The judges analysed the evidence in light of these principles, paying particular attention to the specific sections of the *Corporations Act* that were the subject of the dispute. They affirmed that the onus rested on the party alleging contravention to establish the elements of the offence or breach.

The Full Court ultimately upheld the appeal in part, finding that certain aspects of the primary judge's decision were not supported by the evidence or the correct application of the law. Consequently, the court varied the orders made at first instance, reflecting its revised findings on the contraventions alleged.

Orders