Company R Pty Ltd and Yelverton & Anor
[2012] FamCAFC 119
FAMILY COURT OF AUSTRALIA
| COMPANY R PTY LTD & YELVERTON AND ANOR | [2012] FamCAFC 119 |
| FAMILY LAW – APPEAL – PROPERTY – Third party equitable interest – Where the appellant company had claimed an equitable interest secured by written agreement over property owned by the parties – Where the Federal Magistrate dismissed the appellant’s claim without sufficient consideration of the claim and with inadequate reasons– appeal allowed. FAMILY LAW – APPEAL – COSTS CERTIFICATES – Where it was clear it was reasonable for there to be an appeal – Where the parties had complied with all procedural requirements in the appeal proceedings – Orders varied by consent of the parties and costs certificates ordered pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). |
| Family Law Act 1975 (Cth) |
| B & B (Costs Certificates) (2007) FLC 93-339 Ball & Ball (Costs Certificates) [2007] FamCA 1252 |
| APPELLANT: | Company R Pty Ltd |
| 1ST RESPONDENT: | Mr Yelverton |
| 2ND RESPONDENT: | Ms Yelverton |
| FILE NUMBER: | BRC 11676 of 2009 |
| APPEAL NUMBER: | NA 91 of 2011 |
| DATE DELIVERED: | 8 August 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Faulks DCJ, May & Forrest JJ |
| HEARING DATE: | 8 August 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 9 November 2011 |
| LOWER COURT MNC: | [2011] FMCA 1191 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Patane Lawyers |
| 1ST RESPONDENT: | In person |
| 2ND RESPONDENT: | In person |
Orders
The appeal be allowed.
Orders by Consent
Paragraphs 2 and 3 of the orders of Federal Magistrate Howard made
on 23 November 2011 be discharged.
Paragraph 6 of the orders of Federal Magistrate Howard made on
9 November 2011 as amended on 5 June 2012 be discharged, and in lieu thereof:
(i)The trustee pay from his trust account the total balance in respect of (P)BRC 11676/2009 (Mr and Ms Yelverton) to Company R Pty Ltd in full and final satisfaction of its claims against the First and Second Respondents.
(ii)That before the payment referred to in Order 3 above that the trustee deduct $275 as his further fees, costs and outlays.
Further Orders
The Appellant be granted a costs certificate pursuant to the provisions of
s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant in respect of the costs incurred by the Appellant in relation to the appeal.
The First and Second Respondents be granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the First and Second Respondents in respect of the costs incurred by the First and Second Respondents in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Company R Pty Ltd & Yelverton and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 91 of 2011
File Number: BRC 11676 of 2009
| Company R Pty Ltd |
Appellant
And
| Mr Yelverton |
Respondent
And
Ms Yelverton
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
May J
This is an appeal by Company R Pty Ltd “the company” from final property orders made by Federal Magistrate Howard on 9 November 2011. The proceedings were commenced between the first respondent husband, and the second respondent wife. The company was granted leave to intervene in the proceedings between the parties, and claimed an equitable charge over property owned jointly by the husband and wife, arising from a contractual arrangement for the supply of goods to the couple’s business.
The Federal Magistrate dismissed the application of the company seeking a declaration and orders for payment in relation to the alleged equitable charge. By notice of appeal filed 15 November 2011 (subsequently amended on
17 April 2012), the company appeals the dismissal, and those parts of the orders which provide for the distribution of funds to the trustee, the wife and the husband, from the sale of the property allegedly subject to the equitable charge. Orders were subsequently made by the Federal Magistrate as is now referred to by the parties in the orders that they ask us to make by consent.
In my opinion the reasons in this case were completely inadequate. They failed to refer to the facts in support of the company’s claim, they failed to refer to the substantial and useful submissions on behalf of the company, they failed to refer to the law in relation to the claim a third party may make in relation to proceedings under the Family Law Act 1975 (Cth) (“the Act”) and in refusing the application, appear to apply some discretionary element not connected with the circumstances, rather more of an expression of hope over reality.
Costs
In my opinion the appeal should be allowed as the parties have agreed. Each party asks us to make orders by consent, and now also asks us in view of the fact that the appeal is to be allowed, for costs certificates.
In the cases of Ball & Ball (Costs Certificates) [2007] FamCA 1252 and B & B (Costs Certificates) (2007) FLC 93-339, the Court considered the question of whether orders for costs certificates should be made for appeals in which the parties have agreed the appeal should be allowed.
In this case it is clear that it was reasonable for there to be an appeal. In light of this and as the parties have complied with all procedural requirements, in my opinion costs certificates should be granted.
Faulks DCJ
I agree.
Forrest J
I agree.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 8 August 2012.
Associate:
Date: 8 August 2012
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