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DECOLA & DECOLA

DECOLA & DECOLA

Case [2020] FamCA 884

Injunction

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FAMILY COURT OF AUSTRALIA

DECOLA & DECOLA

[2020] FamCA 884

FAMILY LAW – TRUSTEE-IN-BANKRUPTCY – application to join – application granted.

FAMILY LAW – INJUNCTION TO RESTRAIN SOLICITOR – from acting for trustee-in-bankruptcy – solicitor formerly acting for husband – liquidator suing husband for uncommercial transactions and insolvent trading – administration of justice – held, restrained.

FAMILY LAW – MONEY HAD AND RECEIVED – no longer separately maintainable – part now of a broader restitutionary claim – Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560 considered.

Bankruptcy Act 1966 (Cth)
Corporations Act 2001 (Cth) ss 588FB, 588FC, 588FDA, 588G
Family Law Act 1975 (Cth) ss 79, 92
Family Law Rules 2004 (Cth) rr 6.05, 15.09
Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (NSW) r 12

ACN 092 675 164 Pty Ltd v Suckling (2018) 56 VR 448
Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560
Barro & Barro [1982] Fam LR 77
Beer v Ward [1821] 37 ER 779
Belan v Casey [2002] NSWSC 58
Billington & Billington [2008] FamCA 409

Black v Taylor [1993] 3 NZLR 403

Bolitho v Banksia Securities Ltd (No. 4) [2014] VSC 582
Bolkiah, Prince Jefri v KPMG [1999] 2 AC 222
Bowen v Stott [2004] WASC 94
BP Refinery (Westernport) Pty Ltd v Hasting Shire Council (1977) 180 CLR 266
Bricheno v Thorp [1821] 37 ER 864
British American Tobacco Australia Services Ltd v Blanch [2004] NSWSC 70
Carindale Country Club Estate Pty Ltd v Astil (1993) 42 FCR 307
Council of the Queensland Law Society Inc v Wright [2001] QCA 058
Davies v Clough [1837] 59 ER 105
David Securities v Commonwealth Bank of Australia (1992) 175 CLR 353
Dietrichson v Cabburn [1846] 41 ER 861
DJL v The Central Authority (2000) 201 CLR 226
Dougherty v Dougherty (1987) 163 CLR 278
Earl of Cholmondeley v Lord Clinton [1815] 34 ER 515
Everingham v Ontario (1992) 88 DLR (4th) 755
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498
Farrington v Row, McBride & Partners [1985] 1 NZLR 83
Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1
Giannarelli & Shulkes v Wraith (1988) 166 CLR 543
Grasby v The Queen (1989) 168 CLR 1
Griffiths v Griffiths [1843] 67 ER 242
Grimwade v Meagher [1995] 1 VR 446
Holborow v Macdonald Rudder [2002] WASC 265
Hutchins v Hutchins (1825) 1 Hog 315
In the Marriage of Biltoft (1995) 19 Fam LR 82
In the Marriage of Harris; re Banaco Pty Ltd (1980) 6 Fam LR 450
In the Marriage of Prince (1984) 9 Fam LR 481
In the Marriage of Rowell (1989) 96 FLR 449
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1
Johnson &Johnson (1999) 26 Fam LR 475

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.

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Details

AGLC: DECOLA & DECOLA [2020] FamCA 884
Case: [2020] FamCA 884
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by the trustee-in-bankruptcy to join proceedings, which was granted. The court also addressed an application to restrain a solicitor from acting for the trustee-in-bankruptcy, as the solicitor had previously acted for the husband. The liquidator was suing the husband for uncommercial transactions and insolvent trading.

The central legal issues before the court were whether the trustee-in-bankruptcy should be joined to the proceedings and whether the solicitor, having previously represented the husband, should be restrained from acting for the trustee-in-bankruptcy in circumstances where the liquidator was pursuing claims against the husband. The court also noted, in passing, that the claim for money had and received is no longer maintainable as a separate cause of action, having been subsumed into broader restitutionary claims, referencing the High Court's decision in *Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd*.

In determining the application to restrain the solicitor, the court applied principles concerning the administration of justice and the duty of solicitors to avoid conflicts of interest. The court considered the potential for prejudice and the importance of maintaining public confidence in the legal profession. The court found that the solicitor's prior representation of the husband created a conflict of interest that warranted restraint to uphold the integrity of the legal process.

The court ordered that the solicitor be restrained from acting for the trustee-in-bankruptcy.

Orders