Coldham and Coldham and Anor - [2014] FCCA 2377

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLDHAM & COLDHAM & ANOR

[2014] FCCA 2377

Catchwords:
FAMILY LAW – Property – dispute between the wife and a creditor of the husband’s about which of them is entitled to money held in trust following the sale of a home – whether s.106B of the Family Law Act 1975 can be called in aid and the equitable charge granted by the husband to the creditor set aside – whether the charge attaches to the proceeds of sale as a result of the husband’s previous legal ownership of the property with the wife or whether the charge only attaches to the husband’s interest (if any) in the money pursuant to the operation of the consent property settlement orders – whether the creditor’s claim should be postponed to the wife’s as result of its conduct in not lodging a caveat prior to the wife signing the consent orders.

Legislation:

Family Law Act 1975 (Cth), s.106B

Cases cited:
ANZ Banking Group & Harper (1988) FamLR 649
Clark v Raymor (Brisbane) Pty Limited (No.2) (1982) Qd R 790
Commonwealth Bank & Amadio (1983) 151 CLR 447
D & D[Section 85 application] (1984) FLC 91-592
Guthrie & ANZ Banking Group Ltd (1991) 23 NSW LR 672
Hodges Hall & Jovanovic & Markov (1995) 19 Fam LR 241
Lyons & Lyons[1967] VR 169
Whitaker & Whitaker (1980) FLC 90-813
Wildschut & Borg Warner Acceptance Corporation (Aust)Ltd BC 8701347

Applicant:

MS COLDHAM

First Respondent:

MR COLDHAM

Second Respondent:

(BUSINESS OMITTED) PTY LTD (ACN (OMITTED)

File Number:

NCC 2776 of 2011

Judgment of:

Judge Terry

Hearing dates:

10 March 2014

Date of Last Submission:

10 March 2014

Delivered at:

Newcastle

Delivered on:

24 October 2014

REPRESENTATION

Counsel for the Applicant:

Mr Rugendyke

Solicitors for the Applicant:

Catherine Henry Partners

The First Respondent:

No appearance

Solicitor Advocate for the Second Respondent:

Mr Patane

Solicitors for the Second Respondent:

Patane Lawyers

ORDERS

The Applicant wife is declared the owner to the exclusion of the Second Respondent (business omitted) Pty Limited of the amount held in trust following the sale of Property C.
If either the Applicant or the Second Respondent wishes to seek a costs order they must within 14 days file and serve on the other a document setting out the amount of costs they seek, the basis on which costs are claimed and the submissions they wish to make about why a costs order should be made.
A party served with a document pursuant to Order (2) must within 14 days of the date of service file and serve on the other party a document setting out the submissions they wish to make in response to the application.
The matter is adjourned to 9.30am on 5 December 2014 for consideration of any applications for costs.
All outstanding applications are otherwise dismissed.

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

FEDERAL…

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 Coldham and Coldham and Anor

Details

AGLC: Coldham and Coldham and Anor [2014] FCCA 2377
Case: [2014] FCCA 2377
Decision Date: 24 October 2014

CaseChat Overview and Summary

In the matter of *Coldham and Coldham and Anor*, the Applicant wife sought a declaration of ownership concerning funds held in trust following the sale of Property C, against the Second Respondent, (business omitted) Pty Limited. The dispute concerned the beneficial entitlement to these proceeds.

The primary legal issue before Judge Terry was to determine the rightful owner of the trust funds derived from the sale of Property C, specifically whether these funds belonged to the Applicant wife to the exclusion of the Second Respondent.

Judge Terry reasoned that the Applicant wife was the sole owner of the funds held in trust from the sale of Property C, to the exclusion of the Second Respondent. The court declared the Applicant wife as the owner of these funds. The court also made detailed orders regarding the process for any party wishing to seek costs, requiring specific documentation and submissions within defined timeframes, and adjourned the matter for consideration of any costs applications. All other outstanding applications were dismissed.

Orders

Orders of the court

The Applicant wife is declared the owner to the exclusion of the Second Respondent (business omitted) Pty Limited of the amount held in trust following the sale of Property C.

If either the Applicant or the Second Respondent wishes to seek a costs order they must within 14 days file and serve on the other a document setting out the amount of costs they seek, the basis on which costs are claimed and the submissions they wish to make about why a costs order should be made.

A party served with a document pursuant to Order (2) must within 14 days of the date of service file and serve on the other party a document setting out the submissions they wish to make in response to the application.

The matter is adjourned to 9.30am on 5 December 2014 for consideration of any applications for costs.

All outstanding applications are otherwise dismissed.

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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