Fuller & Anor and Sadler & Anor - [2017] FamCA 243

FAMILY COURT OF AUSTRALIA

FULLER AND ANOR & SADLER AND ANOR

[2017] FamCA 243

FAMILY LAW – COSTS – Costs of Court appointed receivers – Where the appointment of receivers was terminated by the full court – Where termination of receivers does not invalidate their entitlement to claim for remuneration, expenses, and costs – Issue whether the work undertaken after a stay was granted should be remunerated – Decided it would be unjust to look back in this way and eliminate some sections of work on the basis that it need not have been done – Where it was alleged each of the three trusts should be attributed the work undertaken for it – Decided the receivers’ entitlement extends to all of the assets as a group – Ordered the Court Receivers costs be paid as quantified

Cameron v Cole (1944) 68 CLR 571
Central Commodity Services Proprietary Limited [1984] 1 NSWLR 25
Boehm v Goodall [1911] 1 Ch 155
Mellor v Mellor [1992] 1 WLR 517

APPLICANTS:

Mr Fuller & Mr Martini

FIRST RESPONDENT:

Ms Sadler

SECOND RESPONDENT:	Mr Sadler
FILE NUMBER:	NCC	1976	of	2012

DATE DELIVERED:

21 April 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

12 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Golledge
SOLICITOR FOR THE APPLICANT:	Matthews Folbigg Pty Ltd

COUNSEL FOR THE FIRST RESPONDENT:

Mr Levick

SOLICITOR FOR THE FIRST

RESPONDENT:

O’Hearn Lawyers

COUNSEL FOR THE SECOND RESPONDENT:

N/A

SOLICITOR FOR THE SECOND

RESPONDENT:

Arnold Lawyers

Orders

The Applicants’ remuneration for acting as Court Receivers pursuant to the orders made in this Court on 21 July 2016 (“the July 2016 orders”) be approved in the sum of $30,725.30.
The Applicants’ expenses and legal costs for acting as Court Receivers pursuant to the July 2016 orders be approved as follows:
(i)Expenses $2,779.56;
(ii)Legal costs for acting as Court Receivers as assessed or agreed on a solicitor and client basis from:
(a)6 April 2016 to 11 August 2016;
(b)21 October 2016 to, and inclusive of date of interlocutory hearing (12 April 2017).
A declaration that the Applicants are entitled to be indemnified from the assets of the Sadler Family Trust, the I Superannuation Fund and the H Trust (“the Trusts”) in respect of their remuneration expenses and costs.
A declaration that the Applicants have a charge over the assets of the Trusts as security for payment of their remuneration and proper expenses as well as the costs of this Application in a Case and of the reasonable costs and expenses of enforcing their right of indemnity.
The Application in a Case filed 6 December 2016 and Responses filed in Court by the husband on 12 April 2017 and by the wife on 17 February 2017 are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fuller and Anor & Sadler and Anor has been…

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: [2017] FamCA 243
Decision Date: 21 April 2017

CaseChat Overview and Summary

The applicants, acting as Court Receivers, sought approval of their remuneration and expenses, and a declaration of indemnity and charge over certain trust assets. The respondents were the husband and wife, whose assets were subject to the receivership. The matter came before Cleary J.

The primary legal issues before the Court were whether the applicants were entitled to be indemnified from the assets of the Sadler Family Trust, the I Superannuation Fund, and the H Trust for their remuneration, expenses, and legal costs incurred as Court Receivers. Additionally, the Court was asked to determine if the applicants had a charge over these trust assets as security for such payments and for the costs of the application.

Cleary J approved the applicants' remuneration in the sum of $30,725.30 and their expenses and legal costs, with specific dates for the assessment of legal costs. The Court declared that the applicants were entitled to be indemnified from the assets of the Trusts for their remuneration, expenses, and costs. Furthermore, the Court declared that the applicants held a charge over the assets of the Trusts as security for these amounts, as well as the costs of the application and the enforcement of their indemnity rights. The application filed by the applicants and the responses filed by the husband and wife were otherwise dismissed.

Orders

Orders of the court

The Applicants’ remuneration for acting as Court Receivers pursuant to the orders made in this Court on 21 July 2016 (“the July 2016 orders”) be approved in the sum of $30,725.30.

The Applicants’ expenses and legal costs for acting as Court Receivers pursuant to the July 2016 orders be approved as follows:

(i) Expenses $2,779.56;

(ii) Legal costs for acting as Court Receivers as assessed or agreed on a solicitor and client basis from:

(a) 6 April 2016 to 11 August 2016;

(b) 21 October 2016 to, and inclusive of date of interlocutory hearing (12 April 2017).

A declaration that the Applicants are entitled to be indemnified from the assets of the Sadler Family Trust, the I Superannuation Fund and the H Trust (“the Trusts”) in respect of their remuneration expenses and costs.

A declaration that the Applicants have a charge over the assets of the Trusts as security for payment of their remuneration and proper expenses as well as the costs of this Application in a Case and of the reasonable costs and expenses of enforcing their right of indemnity.

The Application in a Case filed 6 December 2016 and Responses filed in Court by the husband on 12 April 2017 and by the wife on 17 February 2017 are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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