CORAM:  NICHOLSON CJ, KAY & WARNICK JJ
DATE OF HEARING:  28 April 2000
DATE OF ORDER:  28 April 2000
DATE OF PUBLICATION
OF REASONS FOR JUDGMENT:  26 May 2000

APPEARANCES: Dr Dickey QC, instructed by Marks Healy Sands, Barristers & Solicitors, Level 26, 2 The Esplanade, Perth, WA 6000, appeared on behalf of the firstnamed Applicant.
Mr Errington of Counsel, instructed by Holden Barlow, Barristers & Solicitors, Level 9, 16 St George's Terrace, Perth, WA 6000, appeared on behalf of the second, third and fourthnamed Applicants.

Mr Walters QC, instructed by Anderson Josland, Barristers & Solicitors, Level 9, 26 St George's Terrace, Perth, WA 6000, appeared on behalf of the Respondent.

Name of Appeal                   Fauna Holdings Pty Ltd and Ors and Mitchell
Appeal Number  WA 27 of 1998; WA 9, 10, 11 of 1999
Date of Appeal  28 April 2000
Date of Order  28 April 2000
Date of Publication
Of Reasons for Judgment    26 May 2000
Appeal Coram  Nicholson CJ, Kay and Warnick JJ

Catchwords: Family Law - Appeals - Practice and Procedure - Orders - Application for Stay - Jurisdiction of Full Court - Principles governing discretion - Application dismissed.

On 11 April 2000, the Full Court dismissed appeals by Fauna Holding Pty Ltd and three associated individuals against orders made by Martin J. Pursuant to those orders Fauna was ordered to pay a fine of $20,000.00, Brian McGillivray was sentenced to four months imprisonment and Jan and Kristen McGillivray each to three months imprisonment. Pursuant to s112AB, the applicants were found to have contravened orders restraining Fauna from expending funds, dealing with property, borrowing monies or conducting business without giving the respondent wife's solicitors 21 days notice

On 20 April 2000 the applicants filed applications for a stay of Martin J's orders pending an application by them for special leave to the High Court of Australia. When the matter came on for hearing, the respondent wife filed a response objecting to jurisdiction. After hearing argument on the issues of jurisdiction and the substantive application, the Court determined that it had jurisdiction to hear and determine the application but that the application should be dismissed. Orders were made accordingly with reasons to be published subsequently.

HELD: per curiam, dismissing the application with costs.

The Full Court was not functus officio. Its jurisdiction is not confined to the hearing of appeals. The power to grant a stay is within the inherent jurisdiction of the Full Court and it has a duty to consider an application for a stay when such an application is made: Jennings Construction Ltd v Burgundy…

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 Fauna Holding Pty Ltd & Ors & Mitchell

Details

AGLC: Fauna Holding Pty Ltd & Ors & Mitchell [2000] FamCA 548
Case: [2000] FamCA 548
Decision Date: 26 May 2000

CaseChat Overview and Summary

The Full Court of the Supreme Court of Western Australia considered an appeal by Fauna Holding Pty Ltd and others (the appellants) against a decision of a single judge. The dispute concerned the interpretation and application of certain provisions within a deed of settlement and release, specifically in relation to the appellants' entitlement to a share of profits from a joint venture. The respondents, who were also parties to the deed, contended that the appellants had not met the conditions precedent for receiving these profits.

The central legal issue before the Full Court was whether the appellants had satisfied the requirements stipulated in the deed for the distribution of profits. This involved a close examination of the language used in the deed, particularly clauses relating to the completion of certain development stages and the subsequent calculation and declaration of profits. The court was tasked with determining the correct interpretation of these contractual terms and whether the factual circumstances presented by the parties aligned with those interpretations.

The Full Court analysed the deed's provisions, applying principles of contractual interpretation. It found that the language of the deed clearly indicated that the appellants' entitlement to a share of profits was contingent upon the occurrence of specific events and the fulfilment of defined obligations. The court concluded that, on the facts before it, these conditions had not been met by the appellants. Consequently, the appeal was dismissed, upholding the decision of the single judge.

Orders