Franke and Long and Ors - [2011] FamCA 64

FAMILY COURT OF AUSTRALIA

FRANKE & LONG AND ORS

[2011] FamCA 64

FAMILY LAW – COSTS – application for security for costs – wife impecunious, wife has joined third parties claiming a trust – prospects of success – whether an order for costs would stifle the proceedings

Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(AA), 117(2A) and 118
Family Law Rules 2004 (Cth) r 19.05(2)

Luadaka v Luadaka (1998) FLC 92-830
Harvey v Harvey (1970) 120 CLR 529
Brundza v Robbie (1952) 88 CLR 171
Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd; Jeffery & Katauskas Pty Limited v Rickard Constructions Pty Limited [2009] HCA 43 (13 October 2009)
L &Z & Anor [2003] FamCA 9

APPLICANT:

Mr Franke

1st RESPONDENT:

Ms Long

2nd RESPONDENT:

Mr Franke Senior

3rd RESPONDENT:

Mrs Franke Senior

FILE NUMBER:

CSC

703

2008

DATE DELIVERED:

14 February 2011

PLACE DELIVERED:

Cairns

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

24 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Largo

SOLICITOR FOR THE APPLICANT:

Williams Graham Carman

COUNSEL FOR THE 1ST RESPONDNET:

Mr Tree S.C

SOLICITOR FOR THE 1ST RESPONDENT::

O’Reilly Stevens Bovey Lawyers

COUNSEL FOR THE 2ND RESPONDENT:

Mr Kirk S.C

SOLICITOR FOR THE 2ND RESPONDENT:

Miller Harris Lawyers

COUNSEL FOR THE 3RD RESPONDENT:

Mr Kirk S.C

SOLICITOR FOR THE 3RD RESPONDENT:

Miller Harris Lawyers

Orders

The interlocutory application by the second and third respondents for security for costs of the proceedings is dismissed.
BY CONSENT and in relation to the claim by the applicant wife for a declaration against the husband in respect of an alleged equitable interest or entitlement he may have in the properties owned by the second and third respondents and consequential orders in respect of those respondents, be the subject of a pleadings program. That pleadings program will be in accordance with the timetable agreed between the parties and if the parties are unable or unwilling to agree then a timetable determined by the Court. The parties are given liberty to apply on 7 days notice in respect of the pleading program arising pursuant to this order.
Leave is given to the parties to inspect the material produced on subpoena to the Queensland Rural Adjustment Authority (“QRAA”).

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

IT IS NOTED

A single expert will need to be appointed to value the entire farm property subject to a determination as to who should meet the costs of that single expert report, the application of which is to be determined subsequent to the issue of these orders.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 703 of 2008

MR FRANKE

Applicant

And

MS LONG

First Respondent

And

MR FRANKE Senior

Second Respondent

And

MRS…

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 Franke and Long and Ors

Details

AGLC: Franke and Long and Ors [2011] FamCA 64
Case: [2011] FamCA 64
Decision Date: 14 February 2011

CaseChat Overview and Summary

In *Franke and Long and Ors*, Benjamin J of the Family Court of Australia considered an interlocutory application for security for costs and the future conduct of proceedings concerning an alleged equitable interest in properties. The applicant wife sought a declaration against the husband regarding an entitlement he may have in properties owned by the second and third respondents, and consequential orders against those respondents.

The primary legal issues before the Court were whether the second and third respondents were entitled to security for costs of the proceedings, and how the claim by the applicant wife against the second and third respondents should proceed. The Court also had to determine whether leave should be granted for the parties to inspect material produced on subpoena to the Queensland Rural Adjustment Authority.

Benjamin J dismissed the interlocutory application for security for costs. In relation to the wife's claim against the second and third respondents, the Court ordered, by consent, that the matter be subject to a pleadings program. This program was to follow a timetable agreed between the parties, or if agreement could not be reached, a timetable determined by the Court, with liberty to apply on seven days' notice. Leave was granted for the parties to inspect the material produced on subpoena to the Queensland Rural Adjustment Authority. The Court also certified that it was reasonable to engage senior counsel and counsel to attend the proceedings.

Orders

Orders of the court

The interlocutory application by the second and third respondents for security for costs of the proceedings is dismissed.

BY CONSENT and in relation to the claim by the applicant wife for a declaration against the husband in respect of an alleged equitable interest or entitlement he may have in the properties owned by the second and third respondents and consequential orders in respect of those respondents, be the subject of a pleadings program. That pleadings program will be in accordance with the timetable agreed between the parties and if the parties are unable or unwilling to agree then a timetable determined by the Court. The parties are given liberty to apply on 7 days notice in respect of the pleading program arising pursuant to this order.

Leave is given to the parties to inspect the material produced on subpoena to the Queensland Rural Adjustment Authority (“QRAA”).

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

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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