Condren v The Queen - [1989] HCATrans 277

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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Sydney No Sl9 of 1989
B e t w e e n -
JULIA JOHNSON

Appellant

and
LUCJAN RZETELSKI

Respondent

{

MASON CJ
BRENNAN J
TOOHEY J
GAUDRON J
McHUGH J

Johnson(2)
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 15 NOVEMBER 1989, AT 1O.19.AM
Copyright in the High Court of Australia

C 1T2/1 /ND 1 15/11/89

MR M.D. BROUN, QC: In that matter, if the Court pleases,
I appear with my learned friend, MR H. BLEICHER, for the appellant. (instructed by John R. Quinn
& Co)

MR P.I. ROSE, QC: If the Court pleases, I appear with my
learned friend, MR S.R. O'RYAN, for the respondent.
(instructed by Graham M. Cole & Co)

MASON CJ: Yes, Mr Broun.
MR BROUN:

Your Honours, I hand up copies of our contentions,
a summary of our contentions. Perhaps at the same

time it might be easiest if I handed up some
legislation also that we will be referring to,
that is the relevant sections of the FAMILY LAW
ACT.

Your Honours, I propose to refer briefly to the facts then to go through the contentions that
we would make and then to refer in then a short
form to what the original trial judge
Mr Justice Nygh did and to what the Full Court
of the Family Court of Australia did.
The facts, really, that are relevant before

Your Honours are relatively simple.

MASON CJ: Mr Broun, it has been suggested that it would be
advisable for us to read your outline of argument.

MR BROUN: Thank you, Your Honours, yes, certainly.
The facts are relatively simple, the husband was
ordered by the original orders to transfer a half
interest he held in a parcel of real estate which

was a block of flats. He was also ordered to transfer
to the wife shares that he held in his name in
a company which had originally been the wife's
company where he had become the second shareholder.

Those two orders, on being complied with,

would have made her, effectively, the sole owne~
of that block of flats.

(Continued on page 3)

ClT2/2/ND 2 15/11/89
Johnson(2)
MR BROUN (continuing): It was in contemnlation at the
original hearing and the hearing before
Mr Justice Nygh that leads to this appeal
that as soon as the wife became the proprietor
she would proceed to obtain the registration
of the strata plan of the block of flats and
sell some one ~r two of them to discharge a

mortgage obligation. The relevant orders
which set out those obligations are at the

appeal book pages 2 and 3. The result of
the orders was that the wife was to become responsible for a mortgage on the property
which she was going to discharge by selling

off one or more of the units. The reference
to that discharge or the expectation that that
mortgage would be discharged is referred to
again in the appeal book at page…

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 Condren v The Queen

Details

AGLC: Condren v The Queen [1989] HCATrans 277
Case: [1989] HCATrans 277
Decision Date

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia by a husband against orders made by the Full Court of the Family Court of Australia. The dispute originated from orders made by a trial judge, Mr Justice Nygh, concerning the division of property between the husband and wife. The husband was ordered to transfer his interest in a block of flats and shares in a company to the wife. These transfers were intended to make the wife the sole owner of the flats, with the expectation that she would then arrange for the registration of a strata plan and sell some units to discharge a mortgage obligation. The wife was also ordered to pay the husband a sum of money.

The legal issues before the High Court included whether the husband had breached the property transfer orders, the consequences of that breach, and how any resulting loss should be apportioned. Specifically, the court had to consider the impact of the husband's refusal to sign the transfers, which necessitated the registrar signing on his behalf, and the subsequent increase in the mortgage debt during the period of delay. The court also had to determine the extent to which the husband's default contributed to the wife's loss, as opposed to other factors such as the wife's not agreeing to a stay of proceedings pending an earlier appeal.

The High Court considered the reasoning of Mr Justice Nygh and the Full Court of the Family Court. The trial judge had attributed part of the increased mortgage interest to the husband's default and part to the wife's conduct regarding the stay of proceedings. The appeal to the High Court focused on the husband's contention that the Full Court had erred in its assessment of the loss and its apportionment. The court examined the factual matrix surrounding the property transfers, the mortgage obligations, and the actions of both parties in the context of the Family Law Act.

The transcript indicates that the High Court was in the process of hearing submissions from counsel regarding the facts and the legal arguments. The specific outcome or final orders of the High Court are not detailed in the provided text, as the proceedings appear to be ongoing at the point of the transcript.

Orders