Coalter & Loxton (No 3) - [2022] FedCFamC1F 1033

Federal Circuit and Family Court of Australia
(DIVISION 1)
Coalter & Loxton (No 3) [2022] FedCFamC1F 1033

File number(s): SYC 4681 of 2016

Judgment of: SCHONELL J

Date of judgment: 20 December 2022

Catchwords: FAMILY LAW – INJUNCTIONS – Ex parte application – Where the de facto wife sought to restrain the de facto husband from dealing with funds held in his solicitor’s trust account – Where no notice had been given to the de facto husband – Where there is an in principle agreement between the parties – Where the de facto husband has a history of non-compliance – Where the de facto wife has established at a prima facie level that the de facto husband deposited monies into his solicitor’s trust account in accordance with the agreement – Where the evidence indicates that the monies should have been paid to the de facto wife – Orders made as sought by the de facto wife.

Legislation:
Family Law Act 1975 (Cth) ss 90SM, 114

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.34

Cases cited:
Ansah v Ansah [1977] 2 All ER 638

Sieling & Sieling (1979) FLC 90-627; [1979] FamCA 23

Stowe and Stowe (1981) FLC 91-027; [1980] FamCA 92

Tsiang & Wu and Ors (2019) FLC 93-911; [2019] FamCAFC 128

Division: Division 1 First Instance

Number of paragraphs: 31

Date of hearing: 19 December 2022

Place: Sydney

Solicitor for the Applicant: MCW Lawyers

The Respondent: Did not participate
ORDERS

SYC 4681 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS COALTER

Applicant

AND:
MR LOXTON

Respondent

order made by:

SCHONELL J

DATE OF ORDER:

20 DECEMBER 2022

NOTING the applicant de facto wife’s Undertaking as to Damages given this day orally through her solicitor THE COURT ORDERS THAT:
1.Orders are made in accordance with paragraphs 1 to 5 of an Application in a Proceeding filed 19 December 2022, as set out hereunder:
1.That the matter be listed on short notice.
2.That the matter proceed ex-parte of the Respondent.
3.That the requirement for service of the Application and supporting Affidavit on the Respondent and/or his solicitor be dispensed with until the determination of the Application.
4.Pursuant to Section 114 of the Family Law Act, Mr Loxton be hereby injuncted and restrained from providing instructions and directions to Mr Dickran Yakenian and/or any other person at Juris League Consultancy from transferring or otherwise disposing of the monies held in the Trust Account of Juris Legal Consultancy Law Practice Trust Account without an Order of the Court.
5.That Mr Dickran Yakenian and/or any other principal solicitor at Juris League Consultancy is hereby injuncted and restrained from transferring or otherwise disposing of the monies held in the Juris League Consultancy Law Practice Trust Account on behalf of Mr Loxton without further Order of this Court.

2.Copies of these orders together with the Application in a Proceeding and affidavit filed 19 December 2022 be served by 4.00 pm today upon:
(a)the husband;

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 Coalter & Loxton (No 3)

Details

AGLC: Coalter & Loxton (No 3) [2022] FedCFamC1F 1033
Case: [2022] FedCFamC1F 1033
Decision Date

CaseChat Overview and Summary

Ms Coalter (the de facto wife) sought ex parte injunctive relief to prevent Mr Loxton (the de facto husband) from disposing of funds held in his solicitor's trust account. The de facto wife relied upon an in principle agreement between the parties and submitted that the de facto husband had a history of non-compliance with court orders. The application was made without notice to the de facto husband. The de facto husband did not participate in the proceedings. The de facto wife provided evidence of an in principle agreement between the parties that had been reached on 9 November 2022. The agreement required the de facto husband to make payments to the de facto wife. The de facto wife's affidavit contained a trust account receipt from Mr Loxton dated 24 November 2022 for $350,000, with the description "[p]roperty/financial settlement" and under the heading "reason", the words appear "[p]ayment 1 of property settlement agreement entered into on 9 November 2022". The de facto wife submitted that the money had not been received into her solicitor's trust account. The Court was satisfied that there was an in principle agreement between the parties, that the de facto husband had deposited monies into his solicitor's trust account in accordance with the agreement, and that the evidence indicated that the monies should have been paid to the de facto wife. The Court concluded that the de facto wife had established at a prima facie level that there was a serious issue to be tried, and that there was a real risk of dissipation of the funds. The Court was satisfied that the balance of convenience favoured making the order sought by the de facto wife. The Court granted the orders sought by the de facto wife, dispensed with the requirement for service of the application and affidavit, and listed the matter for further hearing.

The Court ordered that Mr Loxton be restrained from providing instructions to his solicitors to transfer or otherwise dispose of the monies held in the trust account without an order of the Court. The Court also ordered that the solicitors for Mr Loxton be restrained from transferring or otherwise disposing of the monies without further order of the Court. The Court ordered that copies of the orders be served by email on Mr Loxton, his solicitors, and the law practice. The Court listed the matter for further hearing before the Court.

Orders