FAMILY COURT OF AUSTRALIA
| EBNER & PAPPAS AND ANOR | [2014] FamCAFC 230 |
| FAMILY LAW – APPEAL – JURISDICTION – Where the appellant appeals from orders made in the Supreme Court of NSW – Where the appellant appeals orders setting aside a contract for the sale of land to the second respondent – Where the appellant appeals orders for costs made against him pursuant to Civil Procedure Act 2005 (NSW) – Whether the consent orders contained an implicit obligation to act reasonably – Where the appellant did not act reasonably to facilitate the transfer of the property – Where the primary judge found the second respondent was not a bona fide purchaser – Whether the first respondent was a creditor – whether the first instance proceedings were ‘proceedings under the Act’ for the purposes of s 117 of the Family Law Act 1975 (Cth) – Where it was found that the primary judge did not err in setting aside the contract for the sale of land – Where it is found that the primary judge did not err by making a costs order pursuant to the Civil Procedure Act 2005 (NSW) – Where, had leave to file a notice of appeal been granted, the appeal would have been dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to appeal orders – Where the delay is not adequately explained for the entire period – Where there is no merit in the proposed grounds of appeal – Application dismissed. |
| Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) |
Alghussein Establishment v Eton College [1991] 1 All ER 267
Barton v Deputy Commissioner of Taxation [1974] HCA 43; (1974) 131 CLR 370
Butt v M’Donald (1896) 7 QLJ 68
Concrete Constructions Pty Ltd v Barnes (1938) 61 CLR 209
Davis v Insolvency and Trustee Service Australia and Others (No 2) (2011) 190 FCR 437
Electrical Enterprises Retail Pty Ltd v Rodgers (1988) 15 NSWLR 473
Ebner v Pappas [2014] NSWCA …
Felton v Mulligan (1971) 124 CLR 367
Gallo v Dawson (1990) 93 ALR 479
In Marriage of Cawthorne (1998) 144 FLR 255
In the Marriage of Langford (1992) 110 FLR 396
In the Marriage of Robinson and Willis (1982) 8 Fam LR 131
Insurance Commissioner v Joyce (1948) 77 CLR 39
Jones v Daniel (2004) 141 FCR 148
Lloyds Bank Ltd v Marcan [1973] 1 WLR 1387
Mackay v Dick (1881) 6 App Cas 251
Mackay v Douglas (1872) LR 14 Eq 106
Marcolongo v Chen (2011) 242 CLR 546
Official Trustee in Bankruptcy v Mateo (2003) FLC 93-128
Pappas v Ebner [2013] NSWSC …
Re Struthers, Liquidator of Project Management, Architecture and Construction, Interior (PACI) Pty Ltd (No 3) (2005) 64 NSWLR 392
Ruthol Pty Ltd v Tricon (Australia) Pty Ltd (2005) 12 BPR 23,923
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty…
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- AGLC
- Ebner & Pappas [2014] FamCAFC 230
- Case
- [2014] FamCAFC 230
- Decision Date
CaseChat Overview and Summary
The appeal raised questions about the existence of an implicit obligation in the consent orders to act reasonably and the primary judge’s findings regarding Pappas’ status as a bona fide purchaser. The Court examined whether the first respondent was a creditor and whether the proceedings were ‘proceedings under the Act’ for the purposes of the Family Law Act 1975 (Cth). The Court held that the primary judge did not err in setting aside the contract for the sale of land, as Ebner did not act reasonably in facilitating the transfer. The Court also found that the primary judge did not err in making a costs order pursuant to the Civil Procedure Act 2005 (NSW). The Court concluded that the appeal was without merit and that, had leave to file a notice of appeal been granted, it would have been dismissed.
The Court dismissed the application for an extension of time to appeal the orders of 12 December 2013 and 17 March 2014. The delay in filing the appeal was not adequately explained, and there was no merit in the proposed grounds of appeal. The Court ordered that the parties file and serve written submissions as to costs, with the respondent’s submission to be filed within 28 days and the appellant’s submission to be filed within 56 days of the decision date.
The Court ordered that the application filed on 7 August 2014 seeking an extension of time to file an appeal from the orders of 12 December 2013 and 17 March 2014 be dismissed. The parties were required to file and serve written submissions as to costs, with the respondent’s submission to be filed within 28 days of the decision date and the appellant’s submission to be filed within 56 days of the decision date.
Orders
Orders of the court
1.
The application filed on 7 August 2014 seeking an extension of time in which to file an appeal from the orders of 12 December 2013 and 17 March 2014 be dismissed.
2.
The parties are to file and serve on the other, written submissions as to costs with the respondent’s submission to be filed and served within 28 days of today and the appellant’s submissions to be filed and served within 56 days of today.
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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