Carpenter and Carpenter (No 2) - [2014] FamCA 959

FAMILY COURT OF AUSTRALIA

CARPENTER & CARPENTER (NO. 2)

[2014] FamCA 959

FAMILY LAW – PRATICE & PROCEDURE – ENFORCEMENT – application by husband for retention of funds in trust in satisfaction of monies owed to the husband by the wife pursuant to Court Order, but not yet paid – application for delivery of chattels.

FAMILY LAW – COSTS – costs sought on an indemnity basis – costs ordered on party/party basis.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
D & D Costs (No. 2) (2010) FLC 93-435
Kohan and Kohan (1993) FLC 92-340
Latoudis v Casey (1990) 170 CLR 534
Limousin & Limousin (Costs) (2008) 38 Fam LR 478
Marsden & Winch [2013] FamCAFC 177
Vlug and Poulos (1997) FLC 92-778

APPLICANT:

Mr Carpenter

RESPONDENT:

Ms Carpenter

FILE NUMBER:

BRC

3510

2011

DATE DELIVERED:

7 November 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

3 November 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Greer from Damien Greer Lawyers

THE RESPONDENT:

In Person

Orders

That Mr SS, in his capacity as Trustee for Sale, retain from the monies payable to the Respondent pursuant to Clause 14(ix)(II) of the Order made 6 June 2014, the sum of $50,000.00 and cause this sum to be paid into the trust account of Damien Greer Lawyers to be held in that firm’s trust account on behalf of the parties pending the earlier of the Court’s determination of the quantum of costs to be paid by the Respondent to the Applicant pursuant to the Order made by the Full Court on 18 June 2014 or written agreement of the parties.
That Damien Bernard Greer is hereby authorised to invest this sum of $50,000.00 on behalf of the parties by way of a bank deposit (term deposit or cash management account) in an Australian licensed Bank and for that purpose:
(a) this Order is sufficient authority for such investment; and
(b)the parties shall, should Damien Bernard Greer request the same, provide him with their respective tax file numbers and any other documents required for identification purposes within 24 hours of his request for the same.
That in the event either party fails to provide Damien Bernard Greer with their respective tax file numbers and any other documents he requires for identification purposes within 24 hours of his request for the same, Damien Bernard Greer shall be relieved of the obligation to invest the sum of $50,000.00 on behalf of the parties and shall simply hold it in trust pending the earlier of the Court’s determination of the quantum of costs to be paid by the Respondent to the Applicant pursuant to of the Order made by the Full Court on 18 June 2014 or written agreement of the parties.
That the Applicant arrange for the collection of the chattels provided for in Clause 13 of the Order made 6 June 2014 from the Respondent and for…

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 Carpenter and Carpenter (No 2)

Details

AGLC: Carpenter and Carpenter (No 2) [2014] FamCA 959
Case: [2014] FamCA 959
Decision Date: 7 November 2014

CaseChat Overview and Summary

In this matter before Hogan J, the applicant husband sought the retention of funds held in trust to satisfy monies owed to him by the respondent wife, as well as the delivery of certain chattels. The respondent wife also sought an order restraining the applicant from instituting further proceedings without leave.

The court was required to determine several legal issues. These included whether a sum of $50,000 should be retained in trust from monies payable to the respondent, pending the determination of costs owed to the applicant, and how these funds should be invested. The court also had to consider arrangements for the collection of chattels by the applicant, including the payment of transportation costs. Finally, the court needed to address the respondent's application for a restraining order and the costs associated with the various applications.

Hogan J ordered that $50,000 be retained by the Trustee for Sale from monies payable to the respondent and paid into the trust account of Damien Greer Lawyers. This sum is to be held pending the court's determination of the quantum of costs payable by the respondent to the applicant, or written agreement between the parties. The trustee was authorised to invest this sum on behalf of the parties. The applicant was directed to arrange for the collection of specified chattels by a commercial removalist before a nominated date, with the costs of transportation to be paid from a $500 sum retained by the Trustee for Sale from sale proceeds. The respondent was ordered to pay the applicant's costs of and incidental to the application filed on 8 October 2014 on a party/party basis, in default of agreement. The respondent's application for a restraining order was dismissed, with no order as to costs for that specific application. The main application and response were otherwise dismissed.

Orders

Orders of the court

That Mr SS, in his capacity as Trustee for Sale, retain from the monies payable to the Respondent pursuant to Clause 14(ix)(II) of the Order made 6 June 2014, the sum of $50,000.00 and cause this sum to be paid into the trust account of Damien Greer Lawyers to be held in that firm’s trust account on behalf of the parties pending the earlier of the Court’s determination of the quantum of costs to be paid by the Respondent to the Applicant pursuant to the Order made by the Full Court on 18 June 2014 or written agreement of the parties.

That Damien Bernard Greer is hereby authorised to invest this sum of $50,000.00 on behalf of the parties by way of a bank deposit (term deposit or cash management account) in an Australian licensed Bank and for that purpose:

(a) this Order is sufficient authority for such investment; and

(b) the parties shall, should Damien Bernard Greer request the same, provide him with their respective tax file numbers and any other documents required for identification purposes within 24 hours of his request for the same.

That in the event either party fails to provide Damien Bernard Greer with their respective tax file numbers and any other documents he requires for identification purposes within 24 hours of his request for the same, Damien Bernard Greer shall be relieved of the obligation to invest the sum of $50,000.00 on behalf of the parties and shall simply hold it in trust pending the earlier of the Court’s determination of the quantum of costs to be paid by the Respondent to the Applicant pursuant to of the Order made by the Full Court on 18 June 2014 or written agreement of the parties.

That the Applicant arrange for the collection of the chattels provided for in Clause 13 of the Order made 6 June 2014 from the Respondent and for that purpose:

(a) the collection of the chattels shall take place before 4.00 pm on Friday. 14 November 2014 and shall be performed by a commercial removalist; and

(b) the Applicant shall, by noon on Monday, 10 November 2014, nominate a date on which and a time at which the chattels shall be collected from the Respondent’s residence and notify the Respondent in writing of this nomination; and

(c) the Respondent shall make the chattels available for collection on the date and at the time nominated by the Applicant.

That the costs of transporting the chattels as ordered in Clause (4) of this Order shall be paid from the monies received by the Trustee for Sale from the settlement of the sale of real property due to occur on Monday, 10 November 2014 and in order to facilitate this:

(a) the Trustee for Sale shall retain the sum of $500.00 in trust with such sum to be deducted from the net sale proceeds provided for in Clause 14 of the Order made 14 June 2014 after the payment provided for in Clause 14 (viii) of that Order; and

(b) the Applicant shall be responsible for meeting the cost of the transportation of the chattels at first instance and the Trustee for Sale shall reimburse him the costs of the same upon production of a receipt issued by the commercial removalists engaged to undertake the transportation of the chattels.

That in the event the cost of transporting the chattels does not expend the entirety of the $500.00 held in trust for this purpose, the Trustee for Sale shall distribute any balance remaining so as to give effect to Clause 14 (ix) of the Order made 6 June 2014.

That the Respondent pay the Applicant’s costs of and incidental to the Application in a Case filed 8 October 2014 with such amount to be as agreed between the parties and, in default of agreement, as assessed on a party/party basis.

That the Respondent’s application for an Order that the Applicant be restrained from instituting proceedings in the Court without first obtaining the leave of the Court is dismissed.

That there is no order as to costs in relation to the Respondent’s application for an Order that the Applicant be restrained from instituting proceedings in the Court without first obtaining the leave of the Court.

10.

That save as is otherwise provided for in this Order, the Application in a Case filed 8 October 2014 and the Response to an Application in a Case filed 16 October 2014 are dismissed.

NOTATION

The Court notes that:

a. save for a dispute as to the quantum of the amount to be retained in trust, the parties agreed that funds from monies payable to the Respondent pursuant to the Order made 6 June 2014 should be retained in trust pending resolution of the dispute about the quantum of the costs to be paid by the Respondent to the Applicant pursuant to the Order made by the Full Court on 18 June 2014 or written agreement of the parties; and

b. the parties agreed that the monies retained in trust on their behalf pursuant to this Order should be invested on their behalf.

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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