Dimitrova & Carman - [2024] FedCFamC1A 214

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dimitrova & Carman [2024] FedCFamC1A 214

Appeal from: Carman and Dimitrova & Ors [2024] FCWA 72

Appeal number: NAA 104 of 2024

File number: PTW 2497 of 2012

Judgment of: ALDRIDGE, MCGUIRE & CHRISTIE JJ

Date of judgment: 15 November 2024

Catchwords:
FAMILY LAW – CROSS-APPEAL – INJUNCTIONS – Whether there was a basis for an injunction freezing funds in a named bank account – Where the primary judge found the disbursement of the funds was a matter in issue in the Supreme Court of Western Australia – Where the relevant indebtedness had been resolved despite proceedings in the Supreme Court of Western Australia continuing – Primary judge erred in making the injunction – Cross-appeal allowed – Re-exercise of discretion to disburse funds – First and second cross-respondent to pay the costs of the cross-appellants in a fixed sum.

FAMILY LAW – APPEAL AND CROSS-APPEAL – COSTS – Where the cross-appellants submit the primary judge erred in interpreting their claim for costs – Where the particulars of the cross-appellants’ statement of claim made their position clear – Costs assessment based on incorrect premise – Cross-appeal allowed – Unnecessary to consider the wife’s claim of discretionary errors – Costs to be remitted for rehearing.

Legislation: Bankruptcy Act 1966 (Cth) s 58

Cases cited:
B Pty Ltd v Dimitrova [2023] WASC…

Dimitrova v Carman (No 2) [2018] WASC…

Dimitrova v Carman (No 3) [2020] WASC…

Dimitrova v Carman (No. 4) [2020] WASC…

Dimitrova v Carman (No 8) [2022] WASC…

Number of paragraphs: 73

Date of hearing: 27 August 2024

Place: Heard in Perth, delivered in Sydney

Counsel for the Appellant / Second Cross-Respondent: Mr Hannan

Solicitor for the Appellant / Second Cross-Respondent: F Law Firm

Counsel for the First, Second and Third Respondents / First, Second and Third Cross-Appellants: Mr McGowan

Solicitor for the First, Second and Third Respondents / First, Second and Third Cross-Appellants: Johnstone Crouse Lawyers

Solicitor for the First Cross-Respondent: Dentons Australia

The Third Cross-Respondent: Litigant in person
ORDERS

NAA 104 of 2024
PTW 2497 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS DIMITROVA

Appellant / Second Cross-Respondent

AND:
MR CARMAN

First Respondent / First Cross-Appellant

MS GRABOWSKA

Second Respondent / Second Cross-Appellant

B PTY LTD (and others named in the Schedule)

Third Respondent / Third Cross-Appellant

ORDER MADE BY:

ALDRIDGE, MCGUIRE & CHRISTIE JJ

DATE OF ORDER:

15 NOVEMBER 2024

THE COURT ORDERS THAT:
1.Leave to appeal is granted.
2.The cross-appeal is allowed.
3.Orders 2, 3, 4, 5 and 9 of the orders made 12 April 2024 are set aside.
4.The parties shall forthwith take all necessary steps to cause the sum held in the CBA account #…92 to be paid to the third respondent/third cross-appellant.
5.The first, second and third cross-appellants’ claim for costs is remitted for rehearing before a judge of the Family Court of Western Australia other than the primary judge.
6.The appellant/second cross-respondent pay the costs…

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 Dimitrova & Carman

Details

AGLC: Dimitrova & Carman [2024] FedCFamC1A 214
Case: [2024] FedCFamC1A 214
Decision Date: 15 November 2024

CaseChat Overview and Summary

In the appeal and cross-appeal, Dimitrova & Carman, the parties involved were Ms Dimitrova, the appellant and second cross-respondent, Mr Carman, the first respondent and first cross-appellant, Ms Grabowska, the second respondent and second cross-appellant, and B Pty Ltd, the third respondent and third cross-appellant. The case involved complex issues of family law, including the disbursement of funds from an escrow account and the allocation of costs. The matter was heard in the Federal Circuit and Family Court of Australia, Appellate Jurisdiction.

The legal issues the court was required to decide included whether there was a basis for an injunction freezing funds in a named bank account and whether the primary judge had erred in interpreting the cross-appellants' claim for costs. The court found that the primary judge had erred in making the injunction, as the disbursement of the funds was a matter in issue in the Supreme Court of Western Australia, and the relevant indebtedness had been resolved despite proceedings continuing. The court also found that the cross-appellants' claim for costs was based on an incorrect premise, and the costs assessment should be remitted for rehearing.

The court's reasoning and outcome were that the cross-appeal was allowed, and orders 2, 3, 4, 5, and 9 of the orders made on 12 April 2024 were set aside. The parties were directed to take all necessary steps to cause the sum held in the CBA account to be paid to the third respondent/third cross-appellant. The claim for costs was remitted for rehearing before a judge of the Family Court of Western Australia other than the primary judge. The appellant/second cross-respondent was ordered to pay the costs of the cross-appellants fixed in the sum of $9,000, and the first cross-respondent was ordered to pay the costs of the cross-appellants fixed in the sum of $2,000.

The final orders of the court were that leave to appeal was granted, the cross-appeal was allowed, and the costs assessment was remitted for rehearing. The appellant/second cross-respondent and the first cross-respondent were ordered to pay the costs of the cross-appellants in fixed sums. The notice of appeal filed on 2 May 2024, as amended on 20 May 2024, was dismissed. The form of the order is subject to the entry in the Court’s records.

Orders

Orders of the court

NAA 104 of 2024

PTW 2497 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DIMITROVA

Appellant / Second Cross-Respondent

AND:

MR CARMAN

First Respondent / First Cross-Appellant

MS GRABOWSKA

Second Respondent / Second Cross-Appellant

B PTY LTD (and others named in the Schedule)

Third Respondent / Third Cross-Appellant

ORDER MADE BY:

ALDRIDGE, MCGUIRE & CHRISTIE JJ

DATE OF ORDER:

15 NOVEMBER 2024

THE COURT ORDERS THAT:

1. Leave to appeal is granted.

2. The cross-appeal is allowed.

3. Orders 2, 3, 4, 5 and 9 of the orders made 12 April 2024 are set aside.

4. The parties shall forthwith take all necessary steps to cause the sum held in the CBA account #…92 to be paid to the third respondent/third cross-appellant.

5. The first, second and third cross-appellants’ claim for costs is remitted for rehearing before a judge of the Family Court of Western Australia other than the primary judge.

6. The appellant/second cross-respondent pay the costs of the cross-appellants fixed in the sum of $9,000.

7. The first cross-respondent pay the costs of the cross-appellants fixed in the sum of $2,000.

8. The Notice of Appeal filed 2 May 2024 as amended 20 May 2024 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

It must be said, however, that this matter is particularly complicated, a circumstance which has been exacerbated by the parties’ approach to these proceedings. To say that the primary judge was given little assistance is a complete understatement. The submissions provided to his Honour were confusing indeed. However, it is our obligation to conduct a full review of the evidence, a task which, even with the assistance of competent counsel who appeared on the appeal, was not easy.BACKGROUND In order to understand the appeal, it is necessary to identify the parties and their relationships to each other and then to identify the relevant factual matrix, as simply as can be done. Mr E Carman (“the husband”) commenced parenting proceedings against the wife in May 2012. By way of an Amended Response filed in August 2012, the wife sought property settlement orders against the husband. The husband became a bankrupt in June 2018 and Mr D in his capacity as trustee of the husband’s bankrupt estate became a party to the proceedings (“the trustee”). On 13 August 2012, a number of third parties were added to the proceedings. Those that remain are Mr Carman (the husband’s brother), Mr Carman’s wife (Ms Grabowska) and B Pty Ltd, a company owned and controlled by Mr Carman and Ms Grabowska. B Pty Ltd operates in the construction industry. The husband, wife, Mr Carman and Ms Grabowska together carried out a number of projects in partnership. It has been found by the Supreme Court that each project was undertaken through a new partnership of these parties. B Pty Ltd carried out the necessary work for each partnership. One of the projects concerned a property at G Street, Suburb H, Western Australia (“[G Street]”) which was acquired by Ms Grabowska, Mr Carman and Mr J Carman (Mr Carman’s uncle) in 2010. The ownership was as tenants in common as to 50 per cent, 25 per cent and 25 per cent respectively. The property was subdivided into two lots, Lot A which was registered in Ms Grabowska’s name and Lot B which was registered in the husband and Mr J Carman’s names as tenants in common in equal shares. Lot B of G Street was sold in late 2011 for $1,250,000. Half of the proceeds were paid to Mr J Carman and the other half paid into an account in the name of the wife and the husband. On 13 December 2011, the sum of $610,492 was transferred to the public trustee’s escrow account in circumstances where the public trustee was, at that time, administering the husband’s affairs. On 14 August 2012, ex parte orders were made. Order 2 effectively froze what remained of the $610,492, namely $541,411 which was deposited into a Commonwealth Bank of Australia (“CBA”) account in the names of the husband and wife. These funds have been referred to as the “escrow funds” and we will use that shorthand here. On 5 December 2012, the parties entered into consent orders dealing with the escrow funds. At that time, the balance of the funds was $550,000. The orders provided for $50,000 to be retained for the costs of the expert witness, one third of the balance to be paid to Mr Carman, Ms Grabowska and B Pty Ltd jointly, followed by payment to discharge a CBA loan held by the husband and wife. In compliance with those orders, approximately $189,000 was paid to the CBA to discharge the personal loan and, as at November 2020, approximately $31,000 had been paid to the expert witness. Mr Carman, Ms Grabowska and B Pty Ltd did not receive their portion of the funds (which remained in the account).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 104 of 2024 PTW 2497 of 2012
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS DIMITROVA Appellant / Second Cross-Respondent
AND:	MR CARMAN First Respondent / First Cross-Appellant MS GRABOWSKA Second Respondent / Second Cross-Appellant B PTY LTD (and others named in the Schedule) Third Respondent / Third Cross-Appellant

Appeal from:	Carman and Dimitrova & Ors [2024] FCWA 72
Appeal number:	NAA 104 of 2024
File number:	PTW 2497 of 2012
Judgment of:	ALDRIDGE, MCGUIRE & CHRISTIE JJ
Date of judgment:	15 November 2024
Catchwords:	FAMILY LAW – CROSS-APPEAL – INJUNCTIONS – Whether there was a basis for an injunction freezing funds in a named bank account – Where the primary judge found the disbursement of the funds was a matter in issue in the Supreme Court of Western Australia – Where the relevant indebtedness had been resolved despite proceedings in the Supreme Court of Western Australia continuing – Primary judge erred in making the injunction – Cross-appeal allowed – Re-exercise of discretion to disburse funds – First and second cross-respondent to pay the costs of the cross-appellants in a fixed sum. FAMILY LAW – APPEAL AND CROSS-APPEAL – COSTS – Where the cross-appellants submit the primary judge erred in interpreting their claim for costs – Where the particulars of the cross-appellants’ statement of claim made their position clear – Costs assessment based on incorrect premise – Cross-appeal allowed – Unnecessary to consider the wife’s claim of discretionary errors – Costs to be remitted for rehearing.
Legislation:	Bankruptcy Act 1966 (Cth) s 58
Cases cited:	B Pty Ltd v Dimitrova [2023] WASC… Dimitrova v Carman (No 2) [2018] WASC… Dimitrova v Carman (No 3) [2020] WASC… Dimitrova v Carman (No. 4) [2020] WASC… Dimitrova v Carman (No 8) [2022] WASC…
Number of paragraphs:	73
Date of hearing:	27 August 2024
Place:	Heard in Perth, delivered in Sydney
Counsel for the Appellant / Second Cross-Respondent:	Mr Hannan
Solicitor for the Appellant / Second Cross-Respondent:	F Law Firm
Counsel for the First, Second and Third Respondents / First, Second and Third Cross-Appellants:	Mr McGowan
Solicitor for the First, Second and Third Respondents / First, Second and Third Cross-Appellants:	Johnstone Crouse Lawyers
Solicitor for the First Cross-Respondent:	Dentons Australia
The Third Cross-Respondent:	Litigant in person

ORDER MADE BY:	ALDRIDGE, MCGUIRE & CHRISTIE JJ
DATE OF ORDER:	15 NOVEMBER 2024