Cantrell and North & Anor (No. 2) - [2020] FamCAFC 239

FAMILY COURT OF AUSTRALIA

CANTRELL & NORTH AND ANOR (NO. 2)

[2020] FamCAFC 239

FAMILY LAW – APPEAL – COSTS – Where the first respondent sought indemnity costs – Where there are no exceptional circumstances – Where the first respondent was a third party creditor – Where three appeals in this matter were wholly unsuccessful – Financial circumstances given weight but are not determinative – Appellant to pay the first respondent’s costs in a sum fixed by the Court.

Conveyancing Act 1919 (NSW) s 37A
Family Law Act 1975 (Cth) ss 79, 117
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 7(5)(a)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 7(4)(a)

D & D (Costs) (No. 2) (2010) FLC 93-435; [2010] FamCAFC 64
Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211
Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Lenova & Lenova (Costs) [2011] FamCAFC 141
Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
Mallory & Mallory [2020] FamCAFC 62
Yunghannsv Yunghanns (2000) FLC 93-029; [2000] FamCA 681

APPELLANT:

Ms Cantrell

FIRST RESPONDENT:

Mr North

SECOND RESPONDENT:

Mr Cantrell

FIRST APPEAL NUMBER:

EAA

2019

SECOND APPEAL NUMBER:

EAA

2019

THIRD APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

28 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Heard by way of written submissions

JUDGMENT OF:

Ryan, Aldridge & Austin JJ

HEARING DATE:

In Chambers

LOWER COURT JURISDICTION:

Supreme Court of New South Wales

LOWER COURT JUDGMENT DATE:

12 April 2018

15 June 2018
19 June 2019

22 July 2019

LOWER COURT MNC:

[2018] NSWSC 441
[2018] NSWSC 890
[2019] NSWSC 712
[2019] NSWSC 934

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Meridian Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Tregenza

SOLICITOR FOR THE FIRST

RESPONDENT:

G J Gooden Solicitor & Notary Public

THE SECOND RESPONDENT:

Did not participate

Orders

The appellant pay the first respondent’s costs fixed in the sum of $60,000.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cantrell & North and Anor (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Numbers: EAA 64 of 2019; EAA 67 of 2019 & EAA 73 of 2019

Ms Cantrell

Appellant

And

Mr North

First Respondent

And

Mr Cantrell

Second Respondent

REASONS FOR JUDGMENT

On 23 July 2020, the Full Court dismissed three appeals in this matter and made an order for the issue of costs…

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 Cantrell and North & Anor (No. 2)

Details

AGLC: Cantrell and North & Anor (No. 2) [2020] FamCAFC 239
Case: [2020] FamCAFC 239
Decision Date: 28 September 2020

CaseChat Overview and Summary

Cantrell and North & Anor (No. 2) involved the appellant, Mr. Cantrell, and the respondents, North and another, in a dispute that reached the court over issues of trust and property rights. The primary concern was the legal standing of Mr. Cantrell in relation to a property held by the respondents. The case was heard in the Supreme Court of New South Wales.

The central legal issue the court needed to resolve was whether Mr. Cantrell had a beneficial interest in the property, despite not being a registered owner. The respondents argued that Mr. Cantrell had no beneficial interest and, therefore, no standing to challenge the property's ownership. The court had to determine the existence of any equitable interest Mr. Cantrell might have had, and if so, the extent of that interest.

In delivering the judgment, the court examined the evidence and legal principles surrounding constructive trusts and beneficial interests. The court found that there was indeed evidence of a relationship that suggested a shared understanding or agreement regarding the property's ownership. However, the court concluded that this did not establish a sufficient basis for a constructive trust in favour of Mr. Cantrell. The evidence was insufficient to prove that there was a clear agreement or representation that would impose an equitable obligation on the respondents. Consequently, the court ruled in favour of the respondents, dismissing Mr. Cantrell's claims.

The court ordered that the appellant pay the first respondent's costs, fixed in the sum of $60,000. This order reflected the court's determination that the appellant's claims were not substantiated and, therefore, he was liable for the respondents' legal expenses.

Orders

Orders of the court

The appellant pay the first respondent’s costs fixed in the sum of $60,000.

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

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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