Foley and Foley and Anor - [2007] FamCA 584

FAMILY COURT OF AUSTRALIA

FOLEY & FOLEY AND ANOR

[2007] FamCA 584

FAMILY LAW - PROPERTY – Wife and husband together seek declaratory relief under Section 78 to the effect that family home of which they are registered as joint proprietors is beneficially held as to 75% by the wife and 25% by the husband – Conceded far greater initial contributions by the wife to acquisition of family home at the commencement of a long marriage – Where making the declarations sought would impact upon the ability of a third party judgment creditor to recover its judgment debt against the husband – Declaratory relief opposed by third part judgment creditor – Judgment creditor as contradictor – Consideration of circumstances in which equitable principles require imposition of a resulting or constructive trust – No evidence upon which court could be satisfied that it would be inequitable to permit the husband to assert his legal title – Husband and wife’s application dismissed – Costs – Indemnity costs

Family Law Act 1975 (Cth)
Bankruptcy Act 1966 (Cth)
Family Law Rules 2004

Trustees of the property of Cummins (a bankrupt) v Cummins and Anor (2006) 224 ALR 280
Draper v Official Trustee in Bankruptcy [2006] FCAFA 157
Baumgartner v Baumgartner (1987) 76 ALR 75
In the Marriage of Kohn (1977) 30 FLR 175 at 177
LAC and TRF and LKL [2005] Fam CA 158 at [41]
Brown & Brown (1998) FLC 92-822 at 85,347
Pension & Pension (No 2) (2005) FMCAfam 22
R & Q [2005] FamCA 6
Arundle Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) HCA 26

APPLICANT:

Mrs Foley

RESPONDENT:

Mr Foley

INTERVENOR:

AUSTRALIAN POSTAL CORPORATION

FILE NUMBER:

MLF

2865

2006

DATE DELIVERED:

14 June 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

23 & 24 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mawson

SOLICITOR FOR THE APPLICANT:

Middletons

COUNSEL FOR THE RESPONDENT:

Mr Edmunds

SOLICITOR FOR THE RESPONDENT:

Trumble Szanto Lawyers

COUNSEL FOR THE INTERVENOR:

Dr Ingleby

SOLICITOR FOR THE INTERVENOR:

Holding Redlich

Orders

That the application of the wife and the response of the husband seeking declaratory relief pursuant to section 78 be, and are hereby, dismissed.
That the husband and the wife each pay one half of the costs of the intervenor, Australian Postal Corporation, such costs:-
(a)To be calculated on a party-party basis and, subject to an election being made by the husband and/or the wife pursuant to 2(b) and 2(c) of this Order, such costs be assessed in accordance with the Family Law Rules 2004;
(b)if within 30 days from the date of this order, the husband notifies the solicitors for the intervenor in open correspondence that he accepts the quantum of the intervenor’s costs at $15,000, then his liability for costs pursuant to this order be fixed in the sum of $7,500 and be payable within 30 days;
(c)if within 30 days from the date of this order, the wife notifies the solicitors for the intervenor in open correspondence…

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

Case: [2007] FamCA 584
Decision Date: 14 June 2007

CaseChat Overview and Summary

In the matter of *Foley and Foley and Anor*, Bennett J of the Family Court of Australia considered applications for declaratory relief under section 78 of the *Family Law Act 1975* (Cth) brought by the wife and the husband, as well as an application by the intervenor, Australian Postal Corporation. The dispute concerned the parties' property interests and the wife's application for an order under section 78.

The primary legal issue before the court was whether to grant declaratory relief sought by the parties under section 78 of the *Family Law Act 1975* (Cth). The court was also required to determine the costs associated with the intervenor's involvement in the proceedings.

Bennett J dismissed the applications of both the wife and the husband for declaratory relief under section 78. The court also dismissed the intervenor's application, save for the issue of costs. The reasoning for dismissing the section 78 applications was not detailed in the provided text, but the court ordered that the husband and wife each pay one half of the intervenor's costs, fixed at $15,000 in total, with provisions for individual acceptance of the quantum within 30 days. The court further dismissed any applications for relief under section 78 or section 79, with the caveat that there had been no determination on the merits of the section 79 applications for a final alteration of property interests. The proceedings were subsequently removed from the active pending cases list.

Orders

Orders of the court

That the application of the wife and the response of the husband seeking declaratory relief pursuant to section 78 be, and are hereby, dismissed.

That the husband and the wife each pay one half of the costs of the intervenor, Australian Postal Corporation, such costs:-

(a) To be calculated on a party-party basis and, subject to an election being made by the husband and/or the wife pursuant to 2(b) and 2(c) of this Order, such costs be assessed in accordance with the Family Law Rules 2004;

(b) if within 30 days from the date of this order, the husband notifies the solicitors for the intervenor in open correspondence that he accepts the quantum of the intervenor’s costs at $15,000, then his liability for costs pursuant to this order be fixed in the sum of $7,500 and be payable within 30 days;

(c) if within 30 days from the date of this order, the wife notifies the solicitors for the intervenor in open correspondence that she accepts the quantum of the intervenor’s costs at $15,000, then her liability for costs pursuant to this order be fixed in the sum of $7,500 and be payable within 30 days.

That the application of the intervenor be otherwise dismissed.

That any application of the husband and the wife for relief pursuant to section 78 or section 79 of the Act be dismissed SAVE THAT there has been no determination on the merits of the applications made pursuant to section 79 for a final alteration of property interests.

That these proceedings be removed from the active pending cases list maintained by the court.

Background

Background to the litigation

Full text does not contain this section.

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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