CARCHAR & HBENUM - [2011] FamCA 496

FAMILY COURT OF AUSTRALIA

CARCHAR & HBENUM

[2011] FamCA 496

FAMILY LAW – PROPERTY – Time of application

FAMILY LAW – ENFORCEMENT OF ORDERS

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337
Corin v Patton (1991) 69 CLR 540
James v Federal Commissioner of Taxation [1955] HCA 75; (1955) 93 CLR 631
Molier and Van Wyk (1980) FLC 90-911
Mullane (1983) FLC 91-373
Norman & Howarth [2003] FamCA 1284
Ramsay and Ramsay (No 2) (1983) FLC 91-323
Ravasini and Ravasini (1983) FLC 93-312
Stephens and Stephens and Anor (Enforcement) [2009] FamCAFC 240

APPLICANT:

Ms Carchar by her case guardian Mr KH

RESPONDENT:

Mr Hbenum by his case guardian Mr BE

FILE NUMBER:

DGC

280

2010

DATE DELIVERED:

27 June 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

9 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hall

SOLICITOR FOR THE APPLICANT:

Willerby’s

COUNSEL FOR THE RESPONDENT:

Mr Weir

SOLICITOR FOR THE RESPONDENT:

John Snodgrass & Associates

Orders

That the implementation of paragraph 4 of the orders made on 7 November 1991 is stayed until 4 pm on 27 August 2011.
That to give effect to paragraph 4 of the orders made on 7 November 1991,and pursuant to s 106A of the Family Law Act 1975, by 4 pm on 27 August 2011, Mr BE as the Case Guardian of the husband sign all such documents in the name of the husband and do all things necessary to transfer to the wife (and if necessary, to the wife’s executor as her legal personal representative) all of the interest of the husband in the real property at R Street, Town 1 UPON A TRUST for the sale of the said property.
That as soon as practicable after 27 August 2011, the Executor of the Estate of the wife implement the provisions of paragraph 4 of the orders made 7 November 1991.
That paragraph 5(a) of the orders made 7 November 1991 is discharged as and from 4 pm on 27 August 2011.
That if the husband has not provided vacant possession of the premises at R Street, Town 1 by 4 pm on 27 August 2011, the wife have liberty to apply on short notice for appropriate orders.
For the purposes of paragraph 4(c) of the orders made 7 November 1991, the words “with interest at the rate of eighteen (18) per centum per annum adjusted monthly from the date” shall mean that simple interest at 18% shall be calculated on $25,000 from 27 October 1991 until the date of payment to the wife on a monthly rather than a daily basis and the reference to “monthly” includes the part of any month.
That save as to the issue of costs, the application (as amended) filed 5 July 2010 and the response (as amended) filed 9 February 2011 are each otherwise dismissed.
That should…

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 CARCHAR & HBENUM

Details

AGLC: CARCHAR & HBENUM [2011] FamCA 496
Case: [2011] FamCA 496
Decision Date: 27 June 2011

CaseChat Overview and Summary

The proceedings before Cronin J involved an application and response concerning the implementation of previous orders made on 7 November 1991. The parties, Carchar and Hbenum, were involved in a dispute regarding the transfer of property and the calculation of interest.

The court was required to determine the precise meaning of an interest clause within the original orders, specifically how simple interest at 18% per annum, adjusted monthly, should be calculated on a sum of $25,000. Additionally, the court had to consider the practical steps and timelines for the transfer of the husband's interest in real property located at R Street, Town 1, to the wife, including provisions for vacant possession and the role of a Case Guardian.

Cronin J interpreted the interest clause to mean that simple interest at 18% per annum was to be calculated on $25,000 from 27 October 1991 until the date of payment to the wife, with such calculation to be made on a monthly basis rather than daily, and including any part of a month. The court also made orders staying the implementation of certain aspects of the 1991 orders until 27 August 2011, directing the Case Guardian to sign documents for the transfer of the husband's interest in the R Street property to the wife upon trust for sale, and requiring the wife's executor to implement the provisions of the 1991 orders as soon as practicable after that date. The court further ordered that if the husband failed to provide vacant possession by the specified date, the wife would have liberty to apply for further orders. The application and response, save for costs, were dismissed.

Orders

Orders of the court

That the implementation of paragraph 4 of the orders made on 7 November 1991 is stayed until 4 pm on 27 August 2011.

That to give effect to paragraph 4 of the orders made on 7 November 1991,and pursuant to s 106A of the Family Law Act 1975, by 4 pm on 27 August 2011, Mr BE as the Case Guardian of the husband sign all such documents in the name of the husband and do all things necessary to transfer to the wife (and if necessary, to the wife’s executor as her legal personal representative) all of the interest of the husband in the real property at R Street, Town 1 UPON A TRUST for the sale of the said property.

That as soon as practicable after 27 August 2011, the Executor of the Estate of the wife implement the provisions of paragraph 4 of the orders made 7 November 1991.

That paragraph 5(a) of the orders made 7 November 1991 is discharged as and from 4 pm on 27 August 2011.

That if the husband has not provided vacant possession of the premises at R Street, Town 1 by 4 pm on 27 August 2011, the wife have liberty to apply on short notice for appropriate orders.

For the purposes of paragraph 4(c) of the orders made 7 November 1991, the words “with interest at the rate of eighteen (18) per centum per annum adjusted monthly from the date” shall mean that simple interest at 18% shall be calculated on $25,000 from 27 October 1991 until the date of payment to the wife on a monthly rather than a daily basis and the reference to “monthly” includes the part of any month.

That save as to the issue of costs, the application (as amended) filed 5 July 2010 and the response (as amended) filed 9 February 2011 are each otherwise dismissed.

That should any party desire to make any application for costs arising out of these orders, they may do so in writing by submission together with reference to any affidavit material they so desire to be considered and such submission shall be filed and served by 4 pm on 30 June 2011 and any submission in response thereto shall be filed and served by 4 pm on 8 July 2011. Any such submission shall be endorsed by the legal practitioner that a copy of it has been served upon the other party.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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