Cloney and Cloney & Ors - [2015] FamCA 78

FAMILY COURT OF AUSTRALIA

CLONEY & CLONEY AND ORS

[2015] FamCA 78

FAMILY LAW – PRACTICE AND PROCEDURE - Summary Dismissal – farming properties – wife claims equitable interest in property held by husband’s parents – husband’s parents seek summary dismissal due to litany of errors in wife’s application – consideration of principles set out in Bigg & Suzi (1998) FLC 92-799 – defects do not amount to “no reasonable chance of success” – no orders for summary dismissal.

FAMILY LAW – COSTS - Security for Costs – husband’s parents sought security for costs in the alternative to application for summary dismissal – financial circumstances of the parties – wife’s capacity to raise funds – potential to stifle litigation – no order for security for costs.

Family Law Act 1975 (Cth) s 97, 117, 118
Family Law Rules 2004 (Cth) 10.12, 19.05

Bigg & Suzi (1998) FLC 92-799
Bretton & Bondai [2013] FamCAFC 168
Friar & Friar [2011] FamCAFC 71
Gerber & Bradley (fmly Gerber) and Ors (Security for Costs) [2011] FamCAFC 206
Pelerman & Pelerman (2000) FLC 93-037

APPLICANT:

Ms A Cloney

RESPONDENT:

Mr B Cloney

SECOND & THIRD RESPONDENTS:

Mr C Cloney and
Ms D Cloney

FILE NUMBER:

ADC

3743

2013

DATE DELIVERED:

18 February 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

23 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cox SC

SOLICITOR FOR THE APPLICANT:

Voumard Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Pyke QC

SOLICITOR FOR THE RESPONDENT:

Mellor Olsson

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS:

Ms Kari

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS:

Thomas Legal

Orders

The Application in a Case filed by the second and third respondents on 12 August 2014 is dismissed and removed from the active cases pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cloney & Cloney & Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3743 of 2013

Ms A Cloney

Applicant

And

Mr B Cloney

First Respondent

And

Mr C Cloney and Ms D Cloney
Second and Third Respondents

REASONS FOR JUDGMENT

Introduction

The wife brought proceedings seeking s 79 property settlement orders by Initiating Application filed on 9 October 2013. That Initiating Application also sought orders that various people, including the second and third respondents Mr C Cloney and Ms D Cloney be joined as third parties to the proceedings. By amended Initiating Application filed on 8 April 2014 the wife, Ms A Cloney (“the wife”) sought orders for final property settlement under s 79 of the Family Law Act 1975 (Cth) (“the Act”) and a declaration that the second and third respondents “hold on trust for the husband and wife arising out of a resulting and/or constructive trust(s)”. The second and third respondents are the husband’s father and mother.
The claim by the wife is more particularly set out…

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 Cloney and Cloney & Ors

Details

AGLC: Cloney and Cloney & Ors [2015] FamCA 78
Case: [2015] FamCA 78
Decision Date: 18 February 2015

CaseChat Overview and Summary

In this matter before Dawe J of the Family Court of Australia, the applicants, Mr and Mrs Cloney (the second and third respondents), sought summary dismissal of the wife's application and, in the alternative, an order for security for costs. The wife claimed an equitable interest in farming properties held by the applicants, who are the husband's parents. The applicants contended that the wife's application suffered from a litany of errors, warranting its dismissal.

The primary legal issue before the court was whether the wife's application had no reasonable prospect of success, thereby justifying summary dismissal. In the alternative, the court was required to consider whether the wife's financial circumstances necessitated an order for security for costs to prevent the litigation from being stifled.

Dawe J considered the principles for summary dismissal as outlined in *Bigg & Suzi* (1998) FLC 92-799. His Honour found that while the wife's application contained defects, these were not so fundamental as to demonstrate that she had no reasonable chance of success. Consequently, the application for summary dismissal was refused. Regarding the alternative application for security for costs, the court considered the financial positions of the parties and the potential for such an order to impede the wife's ability to pursue her claim. His Honour concluded that an order for security for costs was not warranted in the circumstances.

The Application in a Case filed by the second and third respondents on 12 August 2014 was dismissed and removed from the active cases pending list.

Orders

Orders of the court

The Application in a Case filed by the second and third respondents on 12 August 2014 is dismissed and removed from the active cases pending list.

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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