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
That the appeal be dismissed.
That the wife pay the husband’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
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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- AGLC
- Crandall & Crandall [2009] FamCAFC 120
- Case
- [2009] FamCAFC 120
- Decision Date
CaseChat Overview and Summary
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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