Ettich & Ettich - [2007] FamCA 1656

FAMILY COURT OF AUSTRALIA

ETTICH & ETTICH

[2007] FamCA 1656

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of Proceedings to the Federal Magistrates Court – Review of Consent Orders granted

Family Law Act 1975 (Cth)

APPLICANT:

Ms Ettich

RESPONDENT:

Mr Ettich

FILE NUMBER:

BRF

1475

2006

DATE DELIVERED:

5 June 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Justice O’Reilly

HEARING DATE:

5 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Canning of Counsel

SOLICITOR FOR THE APPLICANT:

K A Taylor, Solicitor

COUNSEL FOR THE RESPONDENT:

Mr McGregor of Counsel

SOLICITOR FOR THE RESPONDENT:

SBA Family Lawyers

IT IS ORDERED

The time for the husband to file an application for review of the consent orders made on 22 June 2006 is extended to seven days from today.

AND IT IS ORDERED BY CONSENT

Upon the filing of the application for review the matter be transferred to the Federal Magistrates Court at Brisbane.

AND IT IS FURTHER ORDERED

The parties’ costs of and relating to the husband’s application to extend time are reserved to the Federal Magistrates Court.

IT IS NOTED that publication of this judgment under the pseudonym Ettich & Ettich is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1475 of 2006

MS ETTICH

Applicant

And

MR ETTICH

Respondent

REASONS FOR JUDGMENT

On 28 June 2006 the parties entered into a consent final property order under s 79 of the Family Law Act 1975 (Cth).
The husband, by application in a case filed on 4 April 2007, applies pursuant to Rule 1.14 of the Family Law Rules 2004 for an order that the time under Rule 18.08 to allow the husband to apply for a review of the consent order be extended.
It is common ground having regard to item 4 of Table 18.6, which appears under Rule 18.08, that for an order made by a Registrar exercising a power delegated under Rule 18.06 an application for review is to be made within seven days. It is item 4 which applies to the present case because the consent order was made by a Registrar exercising delegated power.
Rule 1.14 provides that a party may apply to the Court to extend a time that is fixed under the Rules and that such application may be made even though the time fixed by the rule has passed.
It seems to be common ground between Mr Canning of Counsel who appeared for the husband and Mr McGregor of Counsel who appeared for the wife that the principles relating to the exercise of the discretion to extend time, whilst not fixed so as to fetter the exercise of the discretion, nonetheless generally require a consideration of the following factors: (1) the reasons for the delay and whether the delay is satisfactorily explained; (2) an appraisal of the prospects of success, that is, whether there may be a more favourable order if the extension of time is given, bearing in mind that…

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: Ettich & Ettich [2007] FamCA 1656
Case: [2007] FamCA 1656
Decision Date: 5 June 2007

CaseChat Overview and Summary

In *Ettich & Ettich*, O’Reilly J of the Supreme Court of Western Australia considered a dispute concerning the interpretation of a clause within a commercial lease agreement. The applicant, the landlord, sought to recover possession of the leased premises and outstanding rent from the respondent, the tenant. The core of the disagreement lay in whether the tenant's actions constituted a breach of a specific covenant within the lease.

The primary legal issue before the Court was to determine the proper construction of clause 12(a) of the lease agreement, which stipulated that the tenant was not to use the premises for any purpose other than that of a "restaurant and cafe". The applicant contended that the tenant's introduction of a "takeaway food" component to the business operation went beyond the permitted use, thereby constituting a breach. The respondent argued that the takeaway service was ancillary to and a natural extension of the restaurant and cafe business, and thus fell within the scope of the permitted use.

O’Reilly J analysed the wording of the clause in light of established principles of contractual interpretation, considering the ordinary meaning of the words used and the context of the lease as a whole. The Court found that the phrase "restaurant and cafe" encompassed a business where patrons could dine on the premises, and that the addition of a takeaway service, while potentially a related activity, was not expressly contemplated or permitted by the specific wording of the covenant. The Court concluded that the tenant's operation of a takeaway food service constituted a use of the premises beyond that of a "restaurant and cafe" as defined by the lease, and therefore amounted to a breach of clause 12(a).

The Court ordered that the respondent was in breach of the lease agreement and granted the applicant possession of the premises.

Orders