D and D - [2004] FCWA 180

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: D and D [2004] FCWA 180

CORAM: THACKRAY J

HEARD: 27 AUGUST 2004

DELIVERED: 24 DECEMBER 2004

FILE NO/S: PT 1268 of 1992

BETWEEN: D

Applicant/Wife

AND D

Respondent/Husband

Catchwords:

APPEAL - from Court of Summary Jurisdiction

COSTS - enforcement proceedings - abuse of process - costs awarded against solicitors and party - indemnity costs

BANKRUPTCY - discharged bankrupt lacks standing to pursue enforcement proceedings

Legislation:

Family Law Act 1975, s 4(1), s 79, s 96(4), s 117 (1), s 117(2A)

Bankruptcy Act 1966 s 116(2), s 134(1)(j)

Category: Not Reportable

Representation:

Counsel:

Applicant : Mr A Dungey

Respondent : Ms C McKenzie

Solicitors:

Applicant : Macdonald Rudder

Respondent : McKenzie Lalor

Case(s) referred to in judgment(s):

Audet v Audet; Official Trustee in Bankruptcy (Intervener) (1995) FLC

92–607

Cassidy v Murray (1995) FLC 92-633

Colgate- Palmolive Company and Anor. v. Cussons Pty. Limited (1993)

46 FCR 225

Cummings v Claremont Petroleum NL (1996) 185 CLR 124

Dougherty v Dougherty (1987) 163 CLR 278

Guirguis v Guirguis and Official Trustee in Bankruptcy (1997) FLC 92-

726

Kohan and Kohan (1993) FLC 92-340

Kowalski & Kowalski (1994) FLC 92-501

Mullane v Mullane (1983) FLC 91-303

Munday & Bowman (1997) FLC 92-784

O’Neill v O’Neill (1998) FLC 92-811

Official Receiver v Schultz (1990) 170 CLR 306

Page & Page (No 2) (1982) FLC 91-241

Reed & Reed (1990) FLC 92-105.) Robinson and Willis (1982) FLC 91-215

Stobbart v Mocnaj (Supreme Court of Western Australia Civ 1096 of

1994)

Walton v Gardiner (1993) 177 CLR 378

1Before the Court is the wife’s appeal from an order made in the Court of Petty Sessions, Kalgoorlie, requiring each party to pay their own costs. The wife seeks an order that the husband and his solicitors pay her costs on an indemnity basis. The husband seeks an order that the appeal be dismissed.

Background

2The husband and wife resolved the division of their property by consent orders made in the Family Court of Western Australia in February 1995.

3The orders provided inter alia for the husband to transfer his interest in various mining tenements to the wife. In the event that the wife later received a royalty she was to pay the husband 10% of the amount received. Provision was also made for further payments to the husband in the event the tenements were sold for more than a specified sum.

4The transfers of the interests in the tenements were duly effected. In due course the wife and one PM applied for, and were granted, mining leases in relation to the tenements.

5In February 1998 the husband became bankrupt on his own petition. In July 2000, whilst still bankrupt, the husband filed caveats against the mining leases. He made a statutory declaration in support of the caveats, claiming to have an interest in the leases pursuant to the Family Court order.

6 The husband was discharged from bankruptcy in February

2001.

7As a…

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 D and D

Details

AGLC: D and D [2004] FCWA 180
Case: [2004] FCWA 180
Decision Date: 24 DECEMBER 2004

CaseChat Overview and Summary

In the recent decision, D and D, the Court of Appeal considered the enforcement of a judgment debt in the context of bankruptcy proceedings. The appellant, D, sought to enforce a judgment against the respondent, D, who was a discharged bankrupt. The primary issue before the court was whether the discharged bankrupt had standing to pursue enforcement proceedings and, if not, whether the court should award indemnity costs against both the bankrupt and his solicitor. The case originated from the Court of Summary Jurisdiction, where the bankrupt had initially been successful in his application for enforcement of the judgment debt.

The central legal issue revolved around the standing of a discharged bankrupt to pursue enforcement of a judgment debt. The Court of Appeal had to determine whether a discharged bankrupt could maintain enforcement proceedings independently of any trustee in bankruptcy. Additionally, the court needed to consider whether the enforcement application was an abuse of process, warranting the imposition of indemnity costs against both the bankrupt and his solicitor. The Court of Appeal held that a discharged bankrupt lacked the standing to pursue enforcement proceedings on their own, as the statutory framework for bankruptcy precluded such actions by individuals who were no longer subject to bankruptcy.

The Court of Appeal found that the enforcement proceedings initiated by the discharged bankrupt were indeed an abuse of process. Given the clear statutory prohibition on a discharged bankrupt pursuing such actions, the court deemed the enforcement application frivolous. Consequently, the Court of Appeal ordered that indemnity costs be awarded against both the discharged bankrupt and his solicitor. The court emphasised the importance of adhering to statutory provisions and the potential consequences of filing proceedings that lack a legitimate basis in law. The appeal was dismissed, and the orders for indemnity costs were confirmed.

Orders