Crandall & Crandall

Case [2009] FamCAFC 120


FAMILY COURT OF AUSTRALIA

CRANDALL & CRANDALL [2009] FamCAFC 120

FAMILY LAW - APPEAL – PROPERTY – Where the husband received a compensation award – Where part of the award was used as a deposit on a property – Where the deposit was lost – Whether the trial Judge should have applied the Kowaliw principle of waste – Where the funds were lost on a joint venture – the Kowaliw principle would not apply in these circumstances

FAMILY LAW - PROPERTY – Contributions – Whether the trial Judge failed to properly consider a contribution to property made by the wife – Where the contribution was acknowledged by the trial Judge as an initial contribution – Whether the trial Judge gave adequate weight to the initial contributions made by the parties

FAMILY LAW - BANKRUPTCY – Whether the husband was prevented from claiming an interest in property purchased by the wife whilst he was an undischarged bankrupt under the Elias principle – Where the husband had not disclosed an interest in the property to the Trustee in Bankruptcy – Where there had been no earlier representation inconsistent with the husband’s evidence at trial – the Elias principle would not apply in these circumstances

FAMILY LAW - EVIDENCE – Credit – Whether the trial Judge erred in preferring the evidence of one party over that of the other party – Where there was no basis to interfere with the trial Judge’s credit findings

FAMILY LAW - ADEQUACY OF REASONS – No obligation on the trial Judge to discuss every submission made

Appeal dismissed – Order for costs

Bennett and Bennett (1991) FLC 92-191
Browne v Green (1999) FLC 92‑873
C & C [1998] FamCA 143
Chorn & Hopkins (2004) FLC 93‑204
Elias and Elias (1977) FLC 90‑267
House v The King (1936) 55 CLR 499
Jordan & Jordan (1997) FLC 92-736
Kowaliw and Kowaliw (1981) FLC 91‑092
Norbis v Norbis (1986) 161 CLR 513
Omacini and Omacini (2005) FLC 93‑218
Re Chemaisse; Federal Commissioner of Taxation (Intervener) (1990) FLC 92-133
Family Law Act 1975 (Cth) s 79(4)
APPELLANT: Mrs Crandall
RESPONDENT: Mr Crandall
FILE NUMBER: HBC 1251 of 2007
APPEAL NUMBER: SA 70 of 2008
DATE DELIVERED: 10 July 2009  
PLACE DELIVERED: Perth
PLACE HEARD: Hobart
JUDGMENT OF: Bryant CJ, Thackray & Bennett JJ
HEARING DATE: 10 March 2009
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 25 July 2008
LOWER COURT MNC: [2008] FMCAfam 954

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Smith
SOLICITOR FOR THE APPELLANT: PWB Lawyers
COUNSEL FOR THE RESPONDENT: Mr Fitzgerald
SOLICITOR FOR THE RESPONDENT: Faulds & Associates

Orders

  1. That the appeal be dismissed.

  2. That the wife pay the husband’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

  3. That the wife have 60 days within which to pay the husband’s costs.

IT IS NOTED that publication of this judgment under the pseudonym Crandall and Crandall is approved pursuant to s 121(9)(g) of the Family Law Act 1975

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Details
AGLC
Crandall & Crandall [2009] FamCAFC 120
Case
[2009] FamCAFC 120
Decision Date

CaseChat Overview and Summary

The appeal, heard by the Family Court of Australia, involved a dispute between a husband and wife concerning the division of property following their divorce. The husband had received a compensation award, part of which was used as a deposit on a property, but the deposit was lost. The wife had also made contributions to property, acknowledged by the trial judge, but the husband argued that these contributions were not adequately considered. Additionally, the husband claimed that the trial judge should have applied the Kowaliw principle of waste to the lost deposit, but this principle was not applicable given the circumstances. The husband also argued that the Elias principle should have prevented him from claiming an interest in property purchased by the wife during his bankruptcy, but this principle did not apply as he had not disclosed his interest in the property to the Trustee in Bankruptcy. The wife, on the other hand, argued that the trial judge erred in preferring the husband’s evidence over hers, and that the trial judge was obliged to discuss every submission made.

The court was required to decide whether the trial judge properly applied the Kowaliw principle, adequately considered the wife's contributions, correctly applied the Elias principle, and whether there was any error in the trial judge's assessment of the parties' credit. The court also needed to determine if the trial judge was obligated to discuss every submission made by the parties. The court found that the trial judge did not err in declining to apply the Kowaliw principle, had adequately considered the wife’s contributions, correctly applied the Elias principle, and had no basis to interfere with the trial judge's credit findings. The court further held that there was no obligation on the trial judge to discuss every submission made by the parties.

The court held that the trial judge had not erred in any of the respects argued by the husband. The court found that the circumstances did not warrant the application of the Kowaliw principle of waste, as the deposit was lost in the context of a joint venture. The court also found that the trial judge had adequately considered the wife's contributions to property and that the Elias principle did not apply as the husband had not disclosed his interest in the property to the Trustee in Bankruptcy. The court was satisfied that there was no basis to interfere with the trial judge's credit findings, as the trial judge had properly assessed the credibility of the parties' evidence. The court further found that the trial judge was not required to discuss every submission made by the parties, and that the trial judge's reasons were adequate for the purposes of the appeal.

The court dismissed the appeal and ordered that the wife pay the husband’s costs of and incidental to the appeal as agreed, and in default of agreement, as assessed. The court further ordered that the wife had 60 days within which to pay the husband’s costs.

Orders

Orders of the court

1.

That the appeal be dismissed.

2.

That the wife pay the husband’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

3.

That the wife have 60 days within which to pay the husband’s costs.

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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