Claydon and Claydon - [2018] FCCA 1660

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLAYDON & CLAYDON

[2018] FCCA 1660

Catchwords:
FAMILY LAW – Property – Section 79A application to vary or set aside judgment – parties agreed to value of shares at time of trial – shares had increased in value as at date of delivery of judgment – whether grounds are satisfied for varying or setting aside judgment – application dismissed.

Legislation:

Family Law Act 1975, ss.79(1)(a), 79(1)(b), 79A, 90MT(1), 90MT(2).

Evidence Act 1995, s.55

Family Law Rules 2004, rr.13.01, 13.02, 13.04, 13.15

Family Law (Superannuation) Regulations 2001, r.22

Cases cited:

Barker & Barker (2007) 36 Fam LR

Simon & Michel [2010] FMCAfam 1055

Stone & Stone [2013] FamCA 270

Waterman & Waterman [2017] FamCAFC 23

Applicant:

MS CLAYDON

Respondent:

MR CLAYDON

File Number:

BRC 7362 of 2013

Judgment of:

Judge Egan

Hearing date:

11 June 2018

Date of Last Submission:

11 June 2018

Delivered at:

Brisbane

Delivered on:

11 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Hackett

Solicitors for the Applicant:

Evans & Company Family Lawyers

Counsel for the Respondent:

Mr North QC

Solicitors for the Respondent:

Hopgood Ganim Lawyers

ORDERS

That the Initiating Application filed on 28 April 2017 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Claydon & Claydon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 7362 of 2013

MS CLAYDON

Applicant

And

MR CLAYDON

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

I have before me an initiating application filed on behalf of the wife on 28 April 2017. The application by paragraph 1 seeks that orders of the Court made by his Honour Judge Jarrett on 7 February 2017 be varied/amended pursuant to Section 79A of the Family Law Act 1975 (Cth) (“the FLA”). The application in that regard firstly is based upon varying the price at which the shares of a company were to be included for the purposes of the calculation of the non-superannuation asset pool, and then the calculation of the superannuation entitlements of the husband and the wife.
The factual scenario is that each of the husband and the wife were directors of a company called Company W Pty Ltd which was the trustee of a self-managed superannuation fund. That fund had ownership of 32,258 shares in a private company called Company X Pty Ltd. That company is associated with a brand called “omitted”. The ownership of those shares was the subject of consideration by His Honour Judge Jarrett in Federal Circuit Court property adjustment proceedings commenced in this Court.
The trial of those proceedings proceeded in late July and early August 2015. His Honour handed down judgment in that matter on 7 February 2017. It transpired that after August 2015, but before judgment was handed down in February 2017, the husband received notice of a share buy-back offer in respect of these shares in the amount of $13.20 per share. At the trial, it was agreed between the…

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 Claydon and Claydon

Details

AGLC: Claydon and Claydon [2018] FCCA 1660
Case: [2018] FCCA 1660
Decision Date: 11 June 2018

CaseChat Overview and Summary

In the matter of *Claydon and Claydon*, heard by Judge Egan, the dispute concerned an Initiating Application filed on 28 April 2017. The specific nature of the dispute and the identities of the parties beyond their familial designation are not detailed in the provided text.

The central legal issue before the court was the determination of the validity or appropriateness of the Initiating Application filed by one party against the other. The court was required to consider the merits of this application and decide whether it should proceed or be dismissed.

Judge Egan ultimately dismissed the Initiating Application. The reasoning behind this decision is not elaborated upon in the provided excerpt, but the outcome signifies that the court found no basis or sufficient grounds to allow the application to continue.

Orders

Orders of the court

That the Initiating Application filed on 28 April 2017 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.