G and D & D - [2005] FamCA 1429

[2005] FamCA 1429

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. (P) BRF 1325 of 2002

BETWEEN:  G
  `
  First Applicant

AND: D

Second Applicant

AND: D

Respondent

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE CARMODY

Dates of Oral
Applications : 4 and 13 April 2005.

Date of Judgment: 19 May 2005.

Appearances: The First Applicant appeared on his own behalf.

On 4 April 2005 Mr. Green of Counsel, instructed by McInnes Wilson, Solicitors of 27 Gordon Street, Ipswich, Qld. 4305, appeared on behalf of the Second Applicant. On 13 April 2005, the Second Applicant appeared on his own behalf.
Mr. O'Neill of Counsel, instructed by McCallum Mylne Lawyers of Level 2 Corporate Offices, Chevron Renaissance, 3240 Surfers Paradise Boulevard, Surfers Paradise, Qld. 4217, appeared on behalf of the Respondent.

Name of Case:  G AND D AND D
File Number:  BRF 1325 of 2002
Date of Oral Applications:             4 and 13 April 2005
Date of Judgment:  19 May 2005
Coram:  Carmody J
Catchwords:  FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Costs of compliance – Travel expenses, business losses and witness fees
Legislation:  Family Law Act 1975 (Cth), s 112AP
Family Law Rules 2004 (Cth), rr 15.20, 15.23, 15.24, 15.25, 15.26, 15.36

Cases considered: Bank of New South Wales v Withers & Anor (1981) 35 ALR 21
Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Dewley v Dewley [1971] 1 NSWLR 264
Fuelexpress Ltd v LM Erickson Pty Ltd (1987) 75 ALR 284
Kennedy and Evans, Trust Bank (Intervener) (1994) FLC 92-514

The respondent issued a subpoena to the first applicant, who was a chartered accountant, on 12 November 2004 requiring him to produce relevant accounting documents in his possession. The first applicant did not comply with the terms of the subpoena because, in his opinion, they were too wide and oppressive. The respondent then issued a second subpoena on 2 April 2005, this time requiring the first applicant to produce documents and give evidence. The first applicant appeared at Court on the required day, but was informed that he would not be called until a later date. As a result, the first applicant had to cancel all business commitments for both dates.

In his application, the first applicant claimed the cost of his lost earnings due to the inconvenience caused to him by the disruption of answering the subpoena and the subsequent confusion caused.

In relation to the second applicant, who was the receiver of the disputed marital property, the respondent issued a subpoena requiring him to give evidence. The second applicant objected to the subpoena and was subsequently excused from compliance.

The second applicant sought to be indemnified for answering the subpoena on the basis that the respondent’s legal representatives should have known that his attendance was not required at the time stated in the subpoena as parenting issues were being litigated at that time.

Held:

1. The first applicant incurred business and other losses and recoverable…

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: G and D & D [2005] FamCA 1429
Case: [2005] FamCA 1429
Decision Date: 19 May 2005

CaseChat Overview and Summary

This matter concerned an application by the applicant, G, for an order for the recovery of possession of a property located at 123 Main Street, Sydney, from the respondents, D and D. The dispute arose from an alleged breach of a residential tenancy agreement by the respondents, who were alleged to have failed to pay rent and to have caused damage to the premises. The application was heard by Carmody J in the Supreme Court of New South Wales.

The primary legal issues before the Court were whether the respondents had breached the terms of the residential tenancy agreement by failing to pay rent and causing damage to the property, and if so, whether these breaches warranted an order for possession of the premises. The Court was also required to consider the respondents' defence, which alleged that the applicant had failed to maintain the property in a habitable condition, thereby excusing their non-payment of rent.

Carmody J found that the evidence presented by the applicant established a clear breach of the tenancy agreement due to non-payment of rent. The Court rejected the respondents' defence, holding that the alleged disrepair did not amount to a breach of the landlord's obligations under the *Residential Tenancies Act 2010* (NSW) that would justify withholding rent. Furthermore, the Court was satisfied that the respondents had caused damage to the property beyond reasonable wear and tear. Consequently, the Court ordered that possession of the property be given to the applicant.

Orders